UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 nil 
 
 \»
 
 THE LAW AND PRACTICE 
 
 THE SHERIFF COURTS OF SCOTLAND.
 
 THE 
 
 LAW AND PRACTICE 
 
 OF THE 
 
 SHERIFF COURTS OF SCOTLAND. 
 
 BY 
 
 THOMAS ALEXANDER FYFE, 
 
 SHERIFF-SUBSTITUTE, GLASGOW. 
 
 Author of " The Sheriff' Court Code," " Forms of Process in 
 the Sheriff Court," &e. 
 
 EDINBURGH AND GLASGOW: 
 
 WILLIAM HODGE & COMPANY 
 1913.
 
 I L 
 
 Printed itv 
 
 William h ie & Compank 
 
 Glasgow and Edinburgh 
 
 f 1
 
 PIIEFACK. 
 
 For three generations the lawyers trusted guide in raal 
 
 of procedure was " M'Glashan's Sheriff Court Practice." 
 
 After the passing of the Sheriff Courts Act, 1907, I was 
 invited to edit a fifth edition of that work; hut I found it 
 impracticable to adapt the text of M'Glashan to the altered 
 circumstances, for the last edition was then nearly half a 
 century old. I accordingly reluctantly abandoned the attempt ; 
 but, in the present work, I have endeavoured to present, in a form 
 familiar to the legal profession, a modern view of the Sheriff 
 Court and its practice, which, within the last sixty years has been 
 revolutionised by a series of statutes, including the Acts of 1853, 
 1876, 1877, 1907, and 1913. 
 
 One important effect of legislation has been to place the 
 practice of the Sheriff Court largely upon a statutory basis 
 great many matters — in regard to which formerly the only 
 guidance was obiter dicta — are now regulated by Statutory 
 Rules of Procedure, so that a mass of authority quoted in 
 earlier text-books is now obsolete. To a busy procurator 
 seeking (often hurriedly), for guidance upon some point of 
 procedure, there is, as I well know by experience, nothing 
 more irritating than to be confronted with a block of 
 authorities, which, on being consulted, are probably found 
 to be obsolete, or only remotely in point. Direct decisions 
 upon Sheriff Court practice are not numerous, and it frequently 
 happens that a rubric is misleading, and does not disclose 
 the procedure point at all, because the case itself was concerned 
 with other matters, although, incidentally, opinions may have 
 been expressed upon procedure. 
 
 In this volume, it has been my special endeavour to avoid 
 multiplication of references. If a matter is regulated by 
 direct, unambiguous, statutory enactment, obviously there is 
 no need for any further reference. If there is room for 
 doubt, reference to authorities may be useful. But, after 
 all, much of what is called Court practice is no more than
 
 vi PREFACE. 
 
 the adoption, by common consent and long usage, in the Courts, 
 of methods which have been found to be most generally 
 convenienl ; and a greal many matters affecting practice 
 in the Sherifl Courts have uever been the subject of judicial 
 decision. Upou such matters I have expressed my own opinions, 
 based upon forty years intimate practical experience, at the 
 Bar, and on the Bench, in the Sheriff Court itself. I venture 
 to hope that the bock may be useful to practitioners, and to 
 students. 
 
 I have gratefully to acknowledge much valuable aid rendered 
 to me by the Heads of Departments of the experienced staff 
 of the Sheriff-clerk of Lanarkshire. My thanks are especially 
 due to Mr. John Sellar, Sheriff Clerk-Depute of Lanarkshire. 
 
 Glasgow, May, L913.
 
 CONTENTS. 
 
 LIST OF ABBREVIATIONS, - ... 
 
 CHAPTER I. 
 THE COURT. 
 
 1. Introductory, 
 
 2. The Sheriff, - 
 
 3. The Sheriff-Substitute, 
 
 4. Honorary Sheriff-Substitute, 
 
 5. Judges' Powers and Duties, - 
 
 1. General, 
 
 2. Nobile Officium, 
 
 3. Consistorial, - 
 
 4. Recissory, 
 
 5. Exchequer, - 
 
 6. Ecclesiastical, 
 
 7. Heritable, 
 
 8. Suspension, - 
 
 PAGE 
 
 
 1 
 
 6. The Sheriff-clerk, 
 
 2 
 
 7. Auditor of Court, 
 
 6 
 
 s. Procurator ' 
 
 9 
 
 9. Officers of Court, 
 
 10 
 
 10. Law Agents, 
 
 CHAP! 
 rTDicn 
 
 'ER II. 
 TfTTftW 
 
 JKloJJ 
 
 28 
 
 IC11UJN. 
 
 9. Admiralty, - 
 
 28 
 
 10. Declaratory, ■ 
 
 29 
 
 11. Ministerial, - 
 
 38 
 
 12. Criminal, 
 
 40 
 
 13. Declinature, - 
 
 41 
 
 14. Exclusion, 
 
 43 
 
 15. Transfer, 
 
 47 
 
 16. Privative, 
 
 12 
 
 1 1 
 
 I t 
 
 14 
 •_'n 
 
 52 
 
 :.t 
 .">;. 
 •".7 
 58 
 60 
 64 
 
 CHAPTER ill. 
 
 GROUNDS OF JURISDICTION. 
 
 1. Ratione domicilii, 
 
 2. Joint Defenders, - 
 
 3. Carrying on Business, 
 
 4. Arrestment, - 
 
 5. Reconvention, 
 
 68 
 
 6. 
 
 Delict, - 
 
 - 87 
 
 73 
 
 7. 
 
 Ratione rei sitae, - 
 
 s^ 
 
 15 
 
 8. 
 
 Ratione Contractus, 
 
 - 92 
 
 78 
 
 !t. 
 
 Citation, 
 
 - 93 
 
 85 
 
 10. 
 
 Prorogation, 
 
 - !I4 
 
 1. General, 
 
 2. Outlaw, 
 
 3. Convict, 
 
 4. Bankrupt, 
 
 5. Married Woman, - 
 
 6. Minor, - 
 
 7. Insane Person, 
 
 CHAPTER IV. 
 
 THE LITIGANTS. 
 
 95 8. Deaf and Dumb Person, 
 
 95 | 9. Assignee, 
 
 0,-) in. Cautioner, 
 
 !>ti 11. Finn Nominate, 
 
 98 12. Firm Descriptive, 
 
 99 13. \ ea ktiouf i.i! '-int, 
 . 100 14. Mandatory, - 
 
 mi 
 mi 
 102 
 102 
 103 
 107 
 108
 
 VI 11 
 
 CONTENTS. 
 
 ( >i <li n.i i \" Action, - 
 Summary Cause, - 
 
 CHAPTER V. 
 THE ACTION. 
 
 PAGE 
 L12 
 
 113 
 113 
 
 1. Summary Application, 
 f>. The Initial Writ, 
 
 6. The Instance, 
 
 PAGE 
 120 
 
 123 
 126 
 
 1. Warrant of Citation, 
 
 2. [nduoise, 
 
 I iiaitki: VI. 
 SERVICE. 
 
 132 
 
 133 
 
 :!. Execution of Cital ion, 
 
 133 
 
 CHAPTER VII. 
 UNDEFENDED CAUSE. 
 
 1. Decree, 
 
 2. Extract, 
 
 I II 
 117 
 
 3. Reponing, 
 
 150 
 
 CHAPTER VIII. 
 DEFENDED CAUSE. 
 
 1. Appearance, - 
 
 2. Tabling, 
 
 3. Process, 
 
 4. Protestation, 
 6. Lost Process, 
 
 ti. Procedure after tabling, 
 
 (1) General, - 
 
 (2) Summary Cause, 
 
 (3) Ordinary Action, - 
 
 (a) Condescendence, 
 (/*) Defences, - 
 (c) Judicial Tender, 
 ('/) Counter Claim, 
 (< ) Revisal, - 
 (/) Productions, 
 
 1 .->.-> 
 
 (,'/) Adjustment, 
 
 172 
 
 1 .-,.-, 
 
 (// ) ( ionjunction, 
 
 174 
 
 156 
 
 (0 Closing Record, - 
 
 176 
 
 158 
 
 [j) Interim Decree, - 
 
 177 
 
 160 
 
 (t) Consignation, 
 
 179 
 
 Mil 
 
 (I) Realisation of Subject, 
 
 180 
 
 161 
 
 (m) Preliminary Picas, 
 
 180 
 
 n;:! 
 
 (n) Removal to Court of 
 
 
 163 
 
 Session, - 
 
 187 
 
 163 
 
 (4) Judicial Reference, 
 
 188 
 
 Kit 
 
 (.">) Remit to man of skill, 
 
 190 
 
 Kill 
 
 (6) Sisting, .... 
 
 194 
 
 HIT 
 
 (7) Remil to Small Debt Roll, - 
 
 195 
 
 17<» 
 
 (8 Order lor Trial, - 
 
 198 
 
 170 
 
 (il) denouncing probation, 
 
 •JIM) 
 
 CHAPTER IX. 
 
 TRIAL OF THE CAUSE. 
 
 1. Inspect i"ii by Court, 
 
 2. Inspect ion bj Parti* . 
 
 3. Assessors, 
 
 4. Witnesses, - 
 .">. Precognition, 
 
 6. Attestation, - 
 
 7. Citation of Witness, 
 
 8. Payment of Witne 
 
 9. Documentary K\ idem 
 
 1U. Evidence to lie ill relent is. 
 
 11. Proof on Commission, - 
 
 12. Witnesses abroad, 
 
 . •_'( 1 1 
 
 13. 
 
 Proof of Law of other 
 
 
 - 21 1 1 
 
 
 countries, - - - - 
 
 226 
 
 - 21 12 
 
 I I. 
 
 ( londuct of Proof, - 
 
 227 
 
 - 204 
 
 
 (a) Examinal ion of Witness. 
 
 227 
 
 ■ 206 
 
 
 (6) < ross-examination, 
 
 •235 
 
 ■ 206 
 
 
 (c) Re-examination, 
 
 236 
 
 . 208 
 
 
 (il) Proof in Replication, 
 
 •_'37 
 
 - 211 
 211 
 
 
 (e) Appeal during Proof, 
 (/") Close of Proof, 
 
 237 
 239 
 
 - 221 
 ■ 224 
 
 15. 
 
 (<j) Re-opening of Proof, 
 Record of Evidence, 
 
 239 
 241 
 
 ■ 226 
 
 16. 
 
 17. 
 
 Hearing, - 
 Reference to Oath, 
 
 242 
 
 243
 
 
 
 CONTENTS. 
 
 ix 
 
 
 
 CHAPTER X. 
 
 
 
 
 INCIDENTAL PROCEDURE. 
 
 
 1. 
 
 2. 
 
 Amendment, 
 Wakening, - 
 
 PAGE 
 
 - 248 :i. Abandonment, 
 
 - 254 I 
 
 CHAPTER XI. 
 
 JUDGMENT. 
 
 PAGE 
 
 1. 
 
 2. 
 3. 
 
 Form, - 
 
 Date, 
 
 Revision, 
 
 - 258 
 
 - 258 
 
 - 259 
 
 4. Decree in foro, 
 
 5. 1 decree by 1 default . 
 
 2S9 
 260 
 
 CHAPTER XII. 
 
 OPERATING JUDGMENT. 
 
 1. 
 
 Extract, 
 
 • 264 
 
 7. Poinding ami Sale, 
 
 289 
 
 2. 
 
 Registration Decree, 
 
 266 
 
 8. Imprisonment, 
 
 ■_"..:; 
 
 3. 
 
 Charge, 
 
 ■ 266 
 
 9. Inhibition, 
 
 295 
 
 4. 
 
 Arrestment, - 
 
 -'Til 
 
 10. Adjudication, 
 
 296 
 
 5. 
 
 Furthcoming, 
 
 - 280 
 
 11. Judgments Extension Act, 
 
 296 
 
 6. 
 
 Multiplepoinding, 
 
 - 282 
 
 
 
 
 CHAPTER XIII. 
 
 
 
 
 APPEAL. 
 
 
 1. 
 
 Value, - 
 
 300 
 
 8. Summary Cause Appeal, 
 
 311 
 
 2. 
 
 Appeal to Sheriff, - 
 
 - 303 
 
 !). Incidental Appeal. 
 
 .si.-. 
 
 3. 
 
 Appeal to Court of Session. 
 
 - 31 13 
 
 111. Appeal for Jury Trial, - 
 
 315 
 
 4. 
 
 Miide of Appeal, - 
 
 - 304 
 
 11. Disposal of Appeals, 
 
 :;is 
 
 5. 
 
 Effect of Appeal, - 
 
 - 306 
 
 12. Statutory Appeals, 
 
 320 
 
 0. 
 
 Time of Appeal, - 
 
 ::ii7 
 
 13. Si at cil ( !ase Appeal, 
 
 
 7. 
 
 Appealable Judgments, 
 
 308 
 
 14. Advisory Appeal, 
 
 
 
 CHAPTER XIV. 
 
 
 
 
 EXPENSES. 
 
 
 1. 
 
 General, 
 
 329 8. Decree in Agent's name, 
 
 
 ■_> 
 
 Crave, - 
 
 :::;n 
 
 9. Partial Expenses, - 
 
 
 ."' 
 
 Interim, 
 
 331 
 
 10. Skilled Witnesses, 
 
 :;m 
 
 4. 
 
 Caution, 
 
 331 
 
 1 1. Counsel's Fees, 
 
 :;il 
 
 5. 
 
 Joint Litigants, - 
 
 :;::■_' 
 
 12. Effect of Tender, • 
 
 342 
 
 6. 
 
 Agent and Client , 
 
 332 13. Liability for Expenses, 
 
 
 7. 
 
 Taxation, 
 
 :::;:; 
 
 
 
 CHAPTER XV. 
 
 CIVIL JURY TRIAL. 
 
 1. When Competent, 
 
 2. The Jury, - 
 
 3. Procedure, 
 
 4. Verdict, 
 
 5. Appeal, 
 
 345 
 
 ti. 
 
 Form of Judgment 
 
 346 
 
 7. 
 
 Expenses, 
 
 ::is 
 
 s. 
 
 Wakening, 
 
 :;:>:; 
 
 9. 
 
 Default, 
 
 35 1 
 
 in. 
 
 1 [ouse oi Lords, 
 
 :-7
 
 CONTENTS. 
 
 CHAPTER XVI. 
 WORKMEN'S COMPENSATION. 
 
 1. [ntroductory, - • 361 
 
 ■J. Arbil ral ion Aspi 362 
 
 ::. Judicial Aspect , • - 362 
 
 i. Prooedure, ■ 363 
 
 5. I •■ ci '■■ in Absenoe, - 363 
 
 6. Deoree by Default, - ■•<>\ 
 
 7. Medical K« feree, - - 367 
 s. Memorandum oi Agreement , 368 
 '.i. .1 urisdiol ion, - - - - ."{71 
 
 In. .\ . or, - 372 
 
 11. Evidence, .... 373 
 
 12. Judgment, - :; 7-> 
 
 
 
 PAOE 
 
 l::. 
 
 si ii ill clerk's Duties 
 
 375 
 
 l ». 
 
 Fraudulent Agreement, 
 
 ■A" 
 
 15. 
 
 Review, - 
 
 378 
 
 16. 
 
 Appeal, - 
 
 379 
 
 17. 
 
 Suspension, - 
 
 381 
 
 is. 
 
 Maritime, 
 
 ■A*:\ 
 
 19. 
 
 Award under Ordinary 
 
 
 
 Action. • 
 
 :;si 
 
 20. 
 
 Redemption of Payment, 
 
 385 
 
 21. 
 
 Expenses, • 
 
 385 
 
 22. 
 
 Apporl ionment of Award, 
 
 :;s<; 
 
 1. Jurisdiction, 
 
 2. Application by Debtor, 
 ;:. Application by Creditor, 
 
 I. I:, -all, ■ 
 
 .".. i i • ditors' Meeting, 
 
 li. Elect i"n of Tt at i ee, 
 
 7. Remoi al of Trustee, 
 
 8. * '< immissioners, 
 
 9. Preservation of Estate, 
 
 10. Bankrupt's Examination, 
 
 1 1. Administrative Ad\ ice, 
 
 CHAPTER XV 11. 
 BANKRUPTCY. 
 
 388 
 
 12. 
 
 1 teed of Ai rangement, - 
 
 His 
 
 ::sii 
 
 13. 
 
 Composition Settlement, 
 
 412 
 
 390 
 
 14. 
 
 Appeal against Deliverance, - 
 
 413 
 
 392 
 
 15. 
 
 Discbarge of Trustee, - 
 
 414 
 
 392 
 
 L6. 
 
 1 ii scharge of Bankrupt, 
 
 4 If) 
 
 393 
 
 17. 
 
 Miscellaneous Procedure, 
 
 (Hi 
 
 394 
 
 is. 
 
 dure Rules, - 
 
 417 
 
 396 
 
 19. 
 
 ■il ' tebtor, - 
 
 ll!l 
 
 :;■.)(; 
 
 
 ( 'ompany Debtor, - 
 
 421 
 
 398 
 
 21. 
 
 Cessio, 
 
 122 
 
 •11(7 
 
 
 
 
 CHAPTER XVIII. 
 
 REMOVING. 
 
 I. I'm pose, 
 
 -. Notice, - 
 
 .'!. When Action unnecessary, 
 
 I. lout in Arrear, 
 
 5. 1 folding without Le i i 
 
 6. Form oi Notice, - 
 
 i:\'2 7. Irritancy of Lease, - - 441 
 
 133 8. Irritancy of Feu, - - 142 
 
 137 ii. Declaratory,- - - - 443 
 
 139 I". Caution, ... 1 15 
 
 139 1 1. Summary, - - - -446 
 
 mi 12. Occupier without Title, - 4 lit 
 
 CHAPTER XIX. 
 SEQUESTRATION FOR RENT. 
 
 1. Purpose, .... 150 
 
 •_'. Action, I'l 
 
 :;. Breach oi Sequesl ra1 ion, i.vj 
 
 4. Warrant to cany back, - 453 
 
 5. 1 >ecree, 154 
 
 (i. Third Party, - - 156 
 
 CHAPTER XX. 
 
 SERVICE OF HEIRS. 
 
 1. 
 
 Jurisdiction, - 
 
 - 457 
 
 (I. 
 
 Appeal, 
 
 - 460 
 
 •J. 
 
 Koi in of Application, 
 
 . 4.".s 
 
 7. 
 
 Hill, 
 
 - 401 
 
 3. 
 
 Court, - - - - 
 
 - 4. V.i 
 
 s. 
 
 Extract, 
 
 162 
 
 1. 
 
 Publication, - 
 
 - 459 
 
 ii. 
 
 Reduction, - 
 
 - 462 
 
 5. 
 
 Competition. 
 
 - 460 
 
 1(1. 
 
 Completion of Title, 
 
 - 462
 
 CONTENTS. 
 
 CHAlTKl: XXI. 
 
 1. Introductory, 
 
 2. Effect of Sheriff Courts Act, 
 
 3. Executor Nominate, 
 I. Executor Dative, - 
 
 5. Procedure, - 
 
 6. Confirmation, 
 
 7. Court, - 
 
 8. Implied Nomination, 
 
 9. Recall of Appointment, 
 
 SARI 
 
 IGE 
 
 ( PRACTICE. 
 
 IV. I. 
 
 163 
 
 Ht. ( ionjnncl ion of Appli 
 
 
 163 
 
 1 1. Executoi ' Creditor, 
 
 168 
 
 h;i 
 
 12. Minor, • 
 
 169 
 
 Mil 
 
 13. Married Woman, 
 
 170 
 
 it;:. 
 
 14. Legatee, 
 
 17" 
 
 166 
 
 15. Foreigner, 
 
 171 
 
 167 
 
 16. Sealing Repositories, 
 
 171 
 
 467 
 
 17. Small Est ites, 
 
 172 
 
 167 
 
 1 s. Esl ate i 'i v -mi. 
 
 17:; 
 
 CHAPTER XXII. 
 
 PUBLIC INQUIRIES. 
 
 1. Fatal Accidents, &c., - - 477 
 
 2. Board of Trade, - - - 479 
 
 (a) Shipping Casualties, - 479 
 
 ('<) Survey, - - - -484 
 (c) Conduct of Ship's Officers, 485 
 
 CHAPTER XXIII. 
 
 SMALL DEBT COURT. 
 
 1. Jurisdiction, 
 
 2. Procedure, 
 
 3. Competent Actions, 
 
 4. Action of Delivery, 
 
 5. Citation, 
 
 6. Arrestment, - 
 
 7. Multiplepoinding, 
 
 8. Furthcoming, 
 
 9. Sequestration for Rent, 
 
 486 
 
 10. 
 
 Sist, .... 
 
 - L98 
 
 489 
 
 LI. 
 
 Law Agents, 
 
 . 199 
 
 489 
 
 12. 
 
 Judgment, - 
 
 199 
 
 491 
 
 13. 
 
 Defence by Exception, 
 
 r.iil 
 
 t93 
 
 14. 
 
 ( lounter ( llaim, 
 
 .-,iil 
 
 494 
 
 15. 
 
 Witnesses, - 
 
 :,i 13 
 
 495 
 
 16. 
 
 Diligence, 
 
 . :,i 1 \ 
 
 496 
 
 17. 
 
 Appeal, 
 
 . :,i 15 
 
 496 
 
 18. 
 
 Employers and Workmen, 
 
 . 506 
 
 CHAPTER XXIV. 
 
 THE POOR ROLL. 
 
 1. Purpose, - 
 
 2. Certificate of Poverty, 
 
 507 
 508 
 
 3. Agents, 
 
 510 
 
 CHAPTER XXV. 
 
 PROCEDURE RULES OF COURT. 
 
 Acts of Sederunt, 
 
 514 
 
 CHAPTER XXVI. 
 
 SPECIAL ACTIONS. 
 
 1. Ad factum prtestandum, 517 
 
 2. Accounting, - - - -519 
 
 3. Alimentary, - - 520 
 
 4. Division of Commonty, 522 
 
 5. Sale and Division, 
 
 6. Exhibition, - 524 
 
 7. tnterdict, - 525 
 S. Lawburrows, 529 
 
 9. 
 
 March Fences, 
 
 530 
 
 in. 
 
 Maills and Duti< B, 
 
 531 
 
 11. 
 
 Poinding of the Ground, 
 
 532 
 
 12. 
 
 Pro\ Lng i he Tenor, 
 
 
 L3. 
 
 Relief, - 
 
 
 14. 
 
 ilifii and Aliment, 
 
 
 I.".. 
 
 Sett and Sale, 
 
 3
 
 Ml 
 
 CONTENTS. 
 
 CHAPTER X.WII. 
 
 STATUTORY POWERS AND DUTIES. 
 
 1. Agrii ultural Soldi] 
 
 I rofterB, &o., ' - 
 Arbitration, 
 (3) Bequesi oi L< 
 
 2. Arbitrati - 
 
 (1) Purpose, 
 l ' tin if. 
 
 (3) Forum, - 
 
 i l ) ( londucl "I Arl.it ration, 
 '■'•. Birl bs, &c, Registration, 
 (l)Officials, ' - 
 
 (2) ( histody oJ Books, - 
 
 (3) Districts, 
 
 (4) Foi in of Action, 
 
 (5) Forum, - 
 (•>) Informant, 
 
 (7) < Jorrection of lint ries, 
 
 (8) Neglected Entries, 
 
 (9) Old Registers, 
 (10) Legitimation, 
 (11)1 leci ee oi Paternitj . 
 (12) li regular Man iage, 
 
 I. Building Societies, 
 
 (1) General, 
 
 (2) Officials, 
 
 (3) Liquidation, - 
 •">. Burial Grounds, - 
 
 6. Clubs, .... 
 
 (1) General, 
 (•_',< < Granting < lertificate, 
 
 (3) Cancelling < ertificate, 
 
 (4) Prosecutions, 
 
 7. Commissioners Clauses, 
 
 8. Companies, - 
 
 9. I ustody nt ( !hildren, 
 
 ' I i ( lustody Orders, 
 
 (2) ( ruardianship, 
 
 (3) Form of Action, 
 
 10. Employers' Liability, . 
 
 (1 ) Action, - 
 
 (2) Notice, - 
 
 (3) Assessor, 
 
 11. Em 
 
 (1) Jurisdiction, • 
 
 (2) l'i '"'(lure, 
 
 (3) Appeal, 
 L2. Finance, 
 
 (1) Estate Duty, 
 
 (2) Site Value, - 
 
 13. 1- 'i.-h Teinds, 
 
 14. Friendlj So* iel ii -. 
 
 (I) General, 
 
 (•_') [ndusl rial Societies, 
 
 (3) Fi iendly Societies, 
 
 15. Hii itable S< curil ies, 
 
 (1) Jurisdid ion, - 
 
 (2) I ntei did again I ( Sreditor, 
 
 (3) I !jed ion of Proprietor, 
 
 (4) Leasing Subjed , - 
 
 (5) Realising Subjed , 
 
 (6) Pari Passu Security, 
 
 M.I. 
 
 
 
 PAGE 
 
 .-.Ill 
 
 
 (7) Notice, - 
 
 577 
 
 540 
 
 
 (8) Appeal, - : - - 
 
 578 
 
 541 
 
 16. 
 
 House Hating, 
 
 578 
 
 545 
 
 17. 
 
 Housing and Town Planning, 
 
 579 
 
 546 
 
 
 ( 1 1 .1 urisdicl ion, 
 
 :.7!l 
 
 546 
 
 
 (2) Procedure, 
 
 579 
 
 547 
 
 18. 
 
 Husband and Wife, 
 
 .ISO 
 
 J47 
 
 
 (1) < Seneral, 
 
 581 1 
 
 548 
 
 
 (2) Proted ion < >rder,- 
 
 581 1 
 
 548 
 
 
 (3) Wife's Debt, - 
 
 581 
 
 548 
 
 
 1 1 1 1 [usband's < Consent, 
 
 582 
 
 548 
 
 19. 
 
 .Indicia! Factors, - 
 
 582 
 
 549 
 
 
 ( 1 ) Jurisdiction, - 
 
 582 
 
 549 
 
 
 (2) Procedure, 
 
 582 
 
 549 
 
 
 (3) Special Powers, 
 
 583 
 
 549 
 
 
 (4) Recall of Appointment, 
 
 58 1 
 
 .-.;,i i 
 
 
 (5) Discharge of Factor, 
 
 584 
 
 551 
 
 20. 
 
 Lands ( ilauses, 
 
 584 
 
 55 1 
 
 
 (1) ( !er1 ifj ing Capital, 
 
 58 1 
 
 552 
 
 
 (2) Compensation Assess- 
 
 
 553 
 
 
 ment, - 
 
 585 
 
 553 
 
 
 (3) Absent < >\\ ner, 
 
 586 
 
 555 
 
 21. 
 
 Land I drainage, 
 
 586 
 
 555 
 
 
 (1 ) Jurisdiction, - 
 
 586 
 
 .">.V> 
 
 
 (2) Procedure, 
 
 586 
 
 556 
 
 
 (3) Maintenance of Works, 
 
 587 
 
 556 
 
 22. 
 
 Local Government, 
 
 587 
 
 558 
 
 
 (1) Adjustment ot' [nb 
 
 587 
 
 558 
 
 
 (2) Appeal, - 
 
 588 
 
 558 
 
 
 i.'ii Piers and Ferries, - 
 
 588 
 
 559 
 
 
 (4) Fire Engines, 
 
 588 
 
 559 
 
 
 (5) ( lounty Buildings, - 
 
 589 
 
 560 
 
 23. 
 
 Lunacy, - 
 
 589 
 
 561 
 
 
 (1) Cognition of Insane, 
 
 589 
 
 562 
 
 
 C-) Inspection oi Asylums, - 
 
 589 
 
 562 
 
 
 (3) Committal of Lunatic, - 
 
 590 
 
 563 
 
 
 ilil tangerous Lunatic, 
 
 591 
 
 563 
 
 
 (5) Expenses, 
 
 592 
 
 564 
 
 
 (6) ( 'riininal Lunat ic, - 
 
 592 
 
 564 
 
 
 (7)1 >ischarge of Lunatic. - 
 
 593 
 
 564 
 
 
 (8) Escaped Lunatic, - 
 
 593 
 
 565 
 
 24. 
 
 Maritime, - 
 
 594 
 
 565 
 
 
 ( 1) Seamen's Wages, - 
 
 594 
 
 565 
 
 
 (2) Contracts, 
 
 594 
 
 566 
 
 
 ('A) Passage Broker, 
 
 594 
 
 566 
 
 
 (4) Emigrant Runner, 
 
 595 
 
 566 
 
 
 (5) Salvage, 
 
 595 
 
 566 
 
 
 (i',i Apporl ionment ot Sa] 
 
 
 568 
 
 
 vage, - 
 
 597 
 
 569 
 
 
 (7) Evidence, 
 
 597 
 
 571 
 
 
 (S) Citation. 
 
 597 
 
 :.7I 
 
 
 (9) Foreign Ship Detention, 
 
 598 
 
 571 
 
 
 (10) Sale of Goods, 
 
 598 
 
 572 
 
 
 (11) I damage to Harbour, 
 
 599 
 
 :.7:; 
 
 
 ( 12) Pilotage Appeal, - 
 
 599 
 
 573 
 
 2.1. 
 
 Moneylenders' Claims, - 
 
 600 
 
 574 
 
 26. 
 
 Municipal, - 
 
 601 
 
 171 
 
 
 (1) Creation of Rurghs, 
 
 601 
 
 .-,7:. 
 
 
 (2) Revision of Boundaries, 
 
 iiitl 
 
 575 
 
 
 (3) Wards, - 
 
 602 
 
 577 
 
 
 (4) Acquisition of Lands, 
 
 602
 
 CONTENTS. 
 
 STATUTORY POWERS AND DUTIES contimitd. 
 
 (5) ( Jouncillors, - 
 
 i i',i Election Pel ition, - 
 
 (7) Town Council, Resolu- 
 
 tion of, 
 
 (8) Challenge of Accounts, - 
 CM Bye-laws, 
 
 (Hi) Valuation for Assess- 
 ment, 
 
 (11) Recovery of Rates, 
 
 (12) Dangerous Buildings, 
 
 (13) Ruinous Property, 
 
 (14) Dairymen, 
 (1.")) Street Register, 
 
 (16) Appeal, - - - - 
 
 (17) Protecting Public Bodies, 
 
 27. Partnership, - - - - 
 
 (1) Jurisdiction, - 
 
 (2) Procedure, 
 
 28. Poor Law, - - - - 
 
 (1) Election Petition, - 
 
 (2) Relief Order, 
 
 (3) Removal of Paupers, 
 Public Health, 
 
 (1) General, 
 
 (2) Nuisances, 
 
 (3) Notice, - 
 
 (4) Form of Order, 
 (.")) Execution of Work, 
 
 29. 
 
 PAGE 
 
 
 
 603 
 
 
 iiii ( ) 
 
 604 
 
 
 (7) D 
 
 ■ II. 
 
 
 
 605 
 
 
 i'.Ij Boundary Dil 
 
 mi.-, 
 
 
 i hi; Unsound Food, 
 
 606 
 
 
 ill) Infect tous 1 »i 
 
 (12) ( lompulsory Burial, 
 
 607 
 
 
 1.", i 1 Fnderground 1 dwellings, 
 
 608 
 
 
 1 1 1 i lommon Lodging 1 
 
 609 
 
 
 (15) Use of Sewers, 
 
 till! 
 
 
 (16) C pulsory 1 irai 
 
 (ill 
 
 
 | i 7 Suing Local Authority, 
 
 til 2 
 
 
 ( 1S[ Procedure Regulations, - 
 
 613 
 
 80. 
 
 Railways, 
 
 016 
 
 
 (1) Level Crossings, 
 
 616 
 
 
 (2) Accommodation Works, 
 
 616 
 
 
 (3) Sheriff-clerk's Duties, - 
 
 617 
 
 
 i 1 1 Valual ion, 
 
 61 S 
 
 .SI. 
 
 Roads and Bridges, 
 
 61 S 
 
 
 (1) Joint Bridge ( lommittee, 
 
 618 
 
 
 (2) Extraordinary Traffic, - 
 
 (>1«) 
 
 
 (3) Barbed Win- 1 ■'. 
 
 6 lit 
 
 
 (1 1 Interest of Judge, 
 
 619 
 
 
 (5) Bye-laws, 
 
 620 
 
 32. 
 
 Telegraphs, - 
 
 623 
 
 33. 
 
 Trade Unions, 
 
 623 
 
 34. 
 
 Trusts. - 
 
 624 
 
 
 
 ■ 
 
 APPENDIX, - 
 
 INDEX OF CASES CITED, 
 
 INDEX, 
 
 624 
 627 
 
 630 
 630 
 630 
 631 
 631 
 631 
 632 
 632 
 
 633 
 633 
 634 
 635 
 635 
 635 
 
 637 
 
 641 
 695 
 
 717
 
 LIST OF ABBREVIATIONS. 
 
 S. = Shaw's Reports — Court of Session, First Series, 1821-1838 
 D. = Dunlop's Reports Second , 1838-1862 
 
 M. = Macpherson's Reports 
 
 Third 
 
 Fourth 
 Fifth 
 
 Sixth 
 
 1862-1873. 
 1873 1898. 
 1898-1906. 
 
 from 1907. 
 
 R. = Rettie's Reports 
 F. = Fraser's Reports 
 S.C. = Session Cases — Reports 
 S.L.R. = Scottish Law Reporter — Court of Session Reports, from 1865 
 Jur. = Scottish Jurist ,, ,, 1829-1873 
 
 G.S.C. = Guthrie's Select Cases— Sheriff Court Reports, 1871-1885 
 S.C.R. = Sheriff Court Reports (in Scottish Law Review), from 1883 
 S.L.T. = Scots Law Times. 
 Ersk. = Erskine's Institutes. 
 Bell's Prin. = Bell's Principles. 
 Dick, on Evidence = The Law of Evidence ; by William < Jillespie Dickson.
 
 THE LAW AM) PRACTICE 
 
 OF THE 
 
 SHERIFF COURTS OK SCOTLAND. 
 
 CHAPTER I. 
 
 THE COURT. 
 
 1. Introductory. 
 
 1. The present-day Sheriff Court of Scotland is the modern 
 development of a territorial judicial system. .Many statutes 
 have had their effect in shaping it to its present form, but it 
 was not originally statute-created. The territorial divisions 
 of Scotland were not created at first merely for judicial 
 purposes. If they had been, the sheriffdoms would doubtless 
 have been much more compact and convenient than they are. 
 What occurred rather was that the Sheriff's jurisdiction was 
 adapted to already existing- territorial divisions. The origin 
 of these divisions, which we call counties, is somewhat obscure. 
 Some of them were probably originally independent kingdoms 
 or earldoms. Most of them were probably originally tribal 
 settlements, and their extent was mainly regulated by the 
 capacity of the Chief of the time to take, and to hold. But, 
 for the present purpose, the interest of these territorial divisions 
 begins when they had become incorporated into one kingdom 
 called Scotland. This incorporation had been effected by 
 about the twelfth century, and the list of the Scottish counties, 
 made in the time of Edward I. (making allowance for the 
 changes incident to the growth and development of the country, 
 and to certain amalgamations and rearrangements of recenl 
 times), exhibits practically the judicial divisions of Scotland 
 existent at the present day. 
 
 Scots Acts, folio edition, vol. i., p. L21. 
 
 2. In Scotland, as in otfier monarchical countries, the Crown 
 
 is the fountain of justice. Bui from the earliest times it has 
 1
 
 THE COURT. 
 
 been the practice oJ the Crown to devolve upon others the 
 actuaJ administration of judicial authority, within defined 
 areas. A Crown grant of such territorial jurisdiction was at 
 firsl regarded as of the nature of a heritable right, and so the 
 exercise if importanl judicial powers, both civil and criminal, 
 ae hereditary, in districts known as baronies or regalities, 
 according to the Qature of the Crown grant. The Crown 
 retained a nominal concurrenl jurisdiction, bu1 the powerful 
 barons became the real lords ol the area over which their granl 
 extended. The Sheriff was the officer who represented the 
 < row n wit bin the county. 
 
 Ersk. I. I, 1.-10. 
 
 •">. It frequently happened that, within a sheriffdom 
 nominally under the Crown, as represented by the Sheriff, 
 judicial power was in certain districts really exercised by the 
 hereditary holder of a Crown grant of jurisdiction, and much 
 evil resulted from this mixed judicial authority, the Sheriff 
 exercising 1 the Uoyal authority nominally over the whole 
 territory, hut practically only in the Royalty portions of the 
 sheriffdom, and being practically powerless to interfere with 
 the powerful lord of regality, or his steward or bailie. In 
 course of 1 ime, efforts were made to check t be evil, by declaring 
 regalities to be attached to the sheriffdoms within which they 
 lay, by prohibiting the granting of jurisdiction rights by the 
 Crown without the special authority of Parliament, and, as 
 opportunity offered, by the Crown resuming forfeited grants; 
 but all hough the evils of divided judicial jurisdiction were 
 Led, they were not fully remedied till, in the settlem snt 
 of the country after the Jacobite rebellion of 1745, occasion 
 was taken in the Heritable Jurisdiction Act of 1746, which 
 became operative in 1748, to abolish all hereditary jurisdictions. 
 
 Act, 1455, c. t::, 14. -JO (ice II. c. 43. 
 
 I Geo. I. c. 50. Ersk. I. 2, II. and I. I, 7-10. 
 
 2. The Sheriff. 
 
 4. Long before L746 the office of Sheriff had come to be 
 regarded as hereditary. To represent the Crown in early times, 
 the desired qualification was not legal knowledge, but terri- 
 torial influence. Some one of the more powerful barons was 
 usually invested with the office, in exercising which he found
 
 THE SHERIFF. 
 
 himself in continual conflict with the regalitj bar* I 
 
 Sheriff's office was accordingly included in the enactmenl oi 
 17 Hi abolishing all hereditary grants of judicial |><iv. I 
 
 office of Sheriff, or High Sheriff, or Steward, as the Crown 
 representative was designated, remained for a time -till a 
 name, although its character was altered from a hered 
 grant to a nomination during the King's plei 
 became practically an honorary appointment, which long ago 
 merged in that of the Lord Lieutenant of the county. 
 
 20 Geo. II. c. 43, s. 4. Ersk. I. 4, 11. 
 
 5. The Sheriff not having originally been necessarily a 
 lawyer, and the policy of the Heritable Jurisdiction Act ; 
 that judicial functions should thenceforth be exercised only 
 by trained judicial officers, that statute authorised the appoint- 
 ment of a legal deputy to exercise the judicial authority of 
 the High Sheriff. This officer was called the " - Sheriff-Depute," 
 an appellation which clung to the office long after it had i 
 
 to have any meaning, and which was even officially employed 
 so late as in the Sheriff Court Act of 1838, notwithstanding 
 that, ten years earlier, it had been expressly enacted that 
 "the Sheriff-Depute may be addressed by the title of Sheriff, 
 "without the term depute being added." 
 
 20 Geo. II. c. 43, s. 29. 9 Geo. IV. c. 29, s. 23. 
 
 6. When, after 1748, the Sheriff was required to be a lav. 
 his qualification was three years" standing as an advo< 
 
 In 1838 there was added the additional requirement that he 
 should have been at the time of his appointment " in practice 
 "before, and in habitual attendance upon," the Couri oi 
 Session. This condition of being in habitual attendance upon 
 the Court was abrogated in 1870. The Sheriff Courts Act of 
 1907 discarded the necessity of his being in practice. The 
 qualification for a Sheriff is now live years' experience as an 
 advocate or as a Sheriff-Substitute. 
 
 20 Geo. II. c. 43, s. 29. 33 & 34 \ 86, s. 13. 
 
 6 Geo. IV. c. 23, s. 9. 40 & 41 Viet. c. 50, a 4 
 
 1 & 2 Vict, c. 119, s. 2. 7 Ed. VII. c. 51. b. 12. 
 
 7. The Sheriff holds his office </</ vitam <mt culpam. 11 
 removable only for "inability, negled oi duty, or misbe- 
 "haviour." The right to remove a Sheriff from office is v
 
 4 THE COURT. 
 
 in Die Secretary for Scotland, to be exercised upon a report 
 by the Lord President and the Lord Justice-Clerk, and subject 
 to a right of veto by Parliament. 
 
 7 Ed. VII. c. 51. s. 13. 
 
 8. The earlier Sheriff Court statutes contained minute 
 directions as to the Courts to be held, and the duties to be 
 performed, by the Sheriff, and he was originally required to 
 reside within his sheriffdom for at least four months in each 
 year; but that requirement was abolished by the Act of 1838, 
 and the times and places for holding 1 Courts, and the duties of 
 the Sheriff generally, are now regulated by the Secretary for 
 Scotland. 
 
 20 Geo. II. c. 43. 7 Ed. VII. c. 51, s. 18. 
 
 1 & 2 Vict. c. 119, s. 1. 
 
 9. The Sheriffs of the counties of Midlothian and Lanark 
 differ from the other thirteen, who are not resident judges, but 
 mostly reside in Edinburgh, and continue in practice at the 
 bar, visiting their sheriffdoms as occasion may require. The 
 size and importance of these two sheriffdoms has long 
 necessitated the undivided attention of their Sheriffs being 
 given to the work of the office, and over eighty years ago these 
 two Sheriffs were made the subject of special statute, under 
 which they are required to reside within, or within six miles of, 
 the cities of Edinburgh and Glasgow respectively, during nine 
 months of the year. 
 
 3 Geo. IV. c. 29. 
 
 10. Originally a separate Sheriff was appointed for each 
 county, but amalgamation has reduced their number to fifteen. 
 Where counties, which were originally separate sheriffdoms, 
 have been united, a party resident in any of the counties may 
 competently be convened in the principal Court of the united 
 sheriffdom ; but, where there are district Courts in a sheriff- 
 dom, the proper Court in which to convene a defender, and in 
 small debt cases the only competent Court, is the Court of the 
 district within which the defender resides or carries on business. 
 
 33 & 34 Vict. c. 86. Davidson v. Davidson, 1891, 18 
 
 7 Ed. VII. c. 51. R. 884. 
 
 Tait v. Johnston, 1891, 18 R. MTavish v. Cameron, 1899, 15 
 
 606. S.C.R. 292. 
 Kelso Dist. Com. v. Fairbairn, 
 
 1891, 29 S.L.R. 284.
 
 THE SHERIFF. 
 
 11. In addition to the appellate judges of the She] 
 there is also in Scotland the office of Sheriff in Cham 
 which is an independent office, created by statute 
 
 and which is regulated by thai statute, 
 
 made by the Conveyancing Acts of 1868 and L874. 
 
 duties of the Sheriff of Chancery mainly r< 
 
 heirs. This office does not. however, form pari of tin- judicial 
 
 system of the Sheriff Court proper, although its executive 
 
 officer is designated "Sheriff." The functions of the Sheriff 
 
 in Chancery, therefore, need not here he discussed in detail. 
 
 10 & 11 Vict. c. 47. 37 & 38 Vict. c. 94, s. 10 and 57. 
 
 31 & 32 Vict. c. 101, s. 27-42. 
 
 12. The Sheriff in early times had many duties personally 
 to perform, for, until comparatively recenl times, the Sheriff- 
 Substitute had no independent responsibility. Upon the 
 Sheriff, for instance, at one time rested the responsibility 
 mustering the military forces within his jurisdiction, and of 
 collecting the Royal revenues; but such duties ;,< these have 
 long ago ceased to exist, except to the limited extent that the 
 Sheriff may require military aid in case of riot, and that lie 
 accounts to Exchequer for the fines collected in his Courts, and 
 executes Exchequer decrees. There is very little in the present 
 time, apart from his work as appellate judge, which the Sheriff 
 may not delegate, and in practice does devolve upon his 
 Substitute. 
 
 1 Geo. I. c. 25. 19 & 20 Vict. c. 56, s. 29-36. 
 
 13. Amongst matters for which the Sheriff has still the sole 
 responsibility, although in the execution of his office he may 
 take the assistance of his Substitutes or others, the most 
 important is his responsibility under the electoral laws. Be 
 is the returning officer in all Parliamentary elections within 
 his sheriffdom, whether county or burgh. In the case of a 
 constituency comprising a group of burghs, the returning 
 officer is the Sheriff of the jurisdiction within which 
 lies the chief town of the group. The writ for the 
 election of a member of Parliament is addressed to the Sheriff. 
 He is responsible for the due observance of all the 
 statutory rules relating to the conduct of elections. Be 
 receives nominations of candidates; in the cast of a coi 
 makes the arrangements for taking a poll; presides at the
 
 THE COUKT. 
 
 counting of the votes; and decides all questions as to the 
 validity of the votes recorded. Ee declares the election, and 
 reports the resuli to the Clerk of the down in Chancery, from 
 whom be received the writ. When there is one election only 
 u [thin bis jurisdiction, the Sheriff usually discharges bis duties 
 as returning officer personally. Where there are more con- 
 stituencies than our within his jurisdiction, and more than 
 
 ] lection a1 the same time, the Sheriff may appoinl a deputy 
 
 returning officer for each constituency. The selection of a 
 deputy rests with the Sheriff, but in practice he nominates 
 one or more of the Sheriffs-Substitute. 
 
 6 Will. IV. c. 78. 35 & 36 Vict. c. 33. 
 
 14. Amongsl the matters with which, as a general rule, the 
 Sheriff dors not concern himself, and for the judicial actings 
 in relation to which the Sheriff-Substitute has the sole responsi- 
 bility, if be acts as judge of first instance, as he almost 
 invariably does, the most important are the administration of 
 the Small Debt Acts, Bankruptcy Acts, and the Workmen's 
 Compensation Acts, as also a vast variety of summary applica- 
 tions both at common law and under statutes, in many of which 
 the judgment of the judge of first instance is final. II is, 
 however, always competent for the Sheriff himself to act as 
 judge of first instance in any matter in regard to which he has 
 no appellate jurisdiction, and, as regards the non-resident 
 Sheriffs, it is a statutory requirement that they shall preside in 
 the Courts (including the Small Debt Courts) in use to be held 
 within their sheriffdoms, at leasl once n year. 
 
 Appendix, s. 18. 44 & 45 Vict. c. 22. 
 
 L9 & 20 Vict. c. 79. 6 Ed. VII. c. 58. 
 
 20 & 21 Vict. c. 19. 7 Ed. VII. c. 51, s. 18. 
 43 & 44 Vict. c. 34. 
 
 .'!. Tin'. Sheriff-Substitute. 
 
 !•">. The preservation, at the 1748 Settlement, of the 
 nominal title of Sheriff, which led to the adoption of the mis- 
 Leading designation "Sheriff-Depute," in its turn led to the 
 adoption of that other misnomer, " Sheriff -Substitute." Even 
 before 1748, the Sheriff had been accustomed to delegate his 
 judicial work to a Substitute, but the responsibility remained 
 with the Sheriff. The Heritable Jurisdiction Act did not 
 shift that responsibility, and probably merely expressed what
 
 THE SHERIFF-SUBSTITUTE. 7 
 
 bad by thai time become a recognised practice, \\ I • 
 authorised the Sheriff to appoint a Substitute, "for whom he 
 "shall bo answerable." Thai Substitute was no1 irily 
 
 a lawyer, and he held office only during the Sheriff's plea 
 More than half a century elapsed before the Li 
 Bcribed a legal qualification for a Sip bstitute, and 
 
 accorded to him practically the same tenure of office as the 
 Sheriff himself, and it was long after thai till lie became in 
 name, what lie had become in fact, an independent Crown 
 official, by his nomination being transferred from the Sheriff 
 to the Crown. The gradual evolution of the offi< 
 Sheriff-Substitute has resulted in bis becoming the terril 
 judge of first instance, besides being, when the Sheriff is 
 non-resident, and when the Sheriff is absent, the acting Sheriff 
 in all matters not falling within the appellate jurisdiction of 
 the Sheriff. 
 
 20 Geo. II. c. 43. 7 Ed. VII. c. 51, s. 16, 17. 19. 21. 
 
 6 Geo. IV. c. 23, s. 9. Fleming v. Dickson, 1862, 1 M. 
 
 1 & 2 Vict. c. 119, s. 3. 188. 
 40 & 41 Vict. c. 50, s. 4. 
 
 16. The Sheriff-Substitute (unlike the Sheriff) is a statute- 
 ereated official. The Heritable Jurisdiction Act authorised the 
 Sheriff " to nominate and appoint one or more person or per- 
 " sons to act as Substitute or Substitutes under him through- 
 out the whole county, shire, or stewartry, or within such 
 "parishes or districts thereof, as shall be expressed in the com- 
 " mission of such Substitute or Substitutes during his plea 
 "for whom he shall be answerable." This was a perg 
 appointment, which, of course, fell upon the death of the 
 Sheriff, n circumstance which led to much inconvenience, 
 which was not remedied till the Sheriff Court Art ol 1838 pro- 
 vided that, " at the death, resignation, or removal of any 
 " Sheriff-Depute, his Substitute or Substitutes shall continue 
 " to hold his or their offices, and to exercise all the jurisdictions, 
 "powers, and authorities thereto belonging, without the 
 "necessity of any new appointment or commission from the 
 " succeeding Sheriff." In 1S77 the Sheriff-Substitute became 
 an independent Crown-nominated official. 
 
 20 Geo. II. c. 43. 40 & 41 Vict. c. 50. 
 
 1 & 2 Vict. c. 119, s. 4. 
 
 IT. The office of Sheriff-Substitute had. bowever, 
 before 1838, been practically recognised as more than :i mere
 
 8 THE C01 i;T. 
 
 delegation, such statutes as that of L787 placing the salaries 
 of the Sheriff and his Substitute upon the civil list, the Judica- 
 ture Act ( ,f Itf-JO preserving bis legal qualification, and the 
 statute of 1830 investing the Sherifi Courl with Admiralty 
 jurisdiction, having all made independeni mention of the 
 Sheriff-Substitute. 
 
 3 (\oo. III. c. 66. 11 Geo. IV. and 1 Will. IV. c. 
 
 }eo. IV. c. 23. 69, a. 22. 
 
 is. Originally, whether prepared by the Sheriff himself, 
 which it rarely was, or by the Sheriff-Substitute, as ii usually 
 there was only one judgment in the Sheriff Court in a 
 judicial process. That was the judgment of the Sheriff. If 
 the Substitute heard the case, and if it were of importance, 
 the Sheriff was probably consulted, but in the general case the 
 judgment nominally of the Sheriff was really that of Lis 
 Substitute. lint, as the duties of both the Sheriff and his 
 Substitute grew in volume and in importance, what had at 
 first been consultation gradually assumed the form of review. 
 At liist the judgmenl of the Sheriff-Substitute was appealable 
 only by leave, but in 1853 an interlocutor of the Sheriff-Substi- 
 tute was officially recognised as an independent judgment, 
 and appeal from the Sheriff-Substitute to the Sheriff as a right 
 was given legislative sanction. That statute merely expr 
 what had become a recognised practice, although it had the 
 apparent effect of introducing a kind of appeal of right not 
 hitherto officially recognised as part of the system of Scottish 
 judicial procedure. 
 
 16 & 17 Vict. c. 80. Act of Sederunt, 1839, s. 98. 
 
 Act of Sederunt, 1825. 
 
 19. When, in 1825, the Sheriff-Substitute was first required 
 to have a legal training, the list of qualified persons included 
 an advocate, a Clerk to the Signet, a Solicitor before the 
 Supreme Courts, or a procurator — all of three years' standing. 
 When, in 1877, the nomination of Sheriffs-Substitute was 
 transferred from the Sheriff to the Crown, the only alteration 
 made in the qualification was raising the experience period from 
 three to five years, otherwise the qualification remained the 
 same, for, although the 1877 Act mentions only " an advocate 
 " or a law agent," by thai time the Law Agents Act of 1873 had 
 defined a law agent as including " every person entitled to 
 " practise as an agent in a Court of law in Scotland." The
 
 THE SHERIFF SUBS'] I'll Tl 
 
 alteration oi InTT, however, created tlii> anomaly, thai 
 presumably Less responsible oflici ibstituti 
 
 experience was deemed requisite, whilst thr< 
 cienl for the presumably more responsible office oJ x; 
 The Sheriff Courts Ad, 1!M)7. removed ilii- anon 
 making I he period for both Eve years. 
 
 Appendix, s 12. 36 & 37 \ i 
 
 6 (Geo. IV. c. 23. VII 51, 
 
 40 cS: 41 Vict. c. 50. s. 4. 
 
 I. The Honorary Sheriff-Substitute. 
 
 20. There is in tnost sheriffdoms another judicial off] 
 who serves a most useful practical purpose. Tin' Hoi 
 Sheriff-Substitute is an unpaid judge, nominated by the 
 Sheriff, to hold office during- the pleasure of the Sheriff, and 
 for whom the Sheriff is answerable. An Honorary Sheriff- 
 Substitute may exercise the whole powers and duties appertain- 
 ing to the office of Sheriff-Substitute. The enactment of 1838 
 that a Sheriff-Substitute should continue to hold and ex. 
 
 his office, notwithstanding the death or removal of the Sheriff 
 from whom he held his Commission, did not mention the 
 Honorary Sheriff-Substitute (indeed, none of the Sheriff Court 
 Acts prior to 1907 mentioned him by title), and it was doubted 
 whether that enactment applied beyond the salaried Sheriff- 
 Substitute. That doubt is set at rest by the express terms of 
 the 1907 statute, which declares that the Honorary Sheriff- 
 Substitute shall hold his office, notwithstanding the death 
 or removal of the Sheriff. The office of Honorary Sheriff- 
 Substitute attains its greatest importance in the sheriffdoms of 
 large area, but sparse population, where the district Courts are 
 at a distance from the principal seat of the resident Sheriff- 
 Substitute. 
 
 Appendix, s. 17. 7 Ed. VII. c. 51, s. IT. 
 
 1 & 2 Vict, c. 119, s. 4. 
 
 21. Xo legal qualification is required for an Eonorary 
 Sheriff-Substitute, and he is not, if he happens to be a la- 
 precluded from practice, as the salaried Sheriff-Substitul 
 Prior to 1907, it was doubted whether an Honorary Sheriff- 
 Substitute could, whilst holding office, be elected a member 
 of Parliament, or even exereise the franchise. All doubt has
 
 10 THE COURT. 
 
 been dispelled by the Sheriff Courts Act. L907, for the 
 disability clause is expressly restricted to a salaried Sheriff- 
 Subst it ute. 
 
 Appendix, s. 21. Henderson v, Warden, 1845, 17 
 
 7 Ed. \ II. c. 51. s. 21. Jur. 271. 
 
 Wright v. Kellie, 1898, 1 1\ 209. 
 
 5. Judges' Powebs \\d Duties. 
 
 22. Mum of the statutory enactments applicable to Sheriff 
 Courl judges apply both to the Sheriff and the Sheriff- 
 Substitute. A.s has been said, they arc now alike Crown 
 nominees. They have similar tenure of office. They are each 
 entitled to receive what the early statutes quaintly called "a 
 "competent salary," at the discretion of the Treasury; and 
 their salaries are alike charged upon the Consolidated Fund. 
 They are now alike under the direction of ihe Secretary for 
 Scotland, who may prescribe their duties. They are alike 
 entitled to a retiring allowance of one-third salary 
 after ten years 3 service, two-thirds after fifteen years, 
 and three-fourths after twenty years, if disabled from the due 
 exercise of their office by age or permanent infirmity. Neither 
 whilst in office is eligible for election as a member of Parlia- 
 ment, and both are debarred from voting in Parliamentary 
 elections held within the sheriffdom. 
 
 Appendix, s. 11-21. 7 Ed. VII. c. 51, s. 11, 13, 14, 
 
 18. 19, 20, and 21. 
 
 23. Some of the enactments, however, apply to one judge 
 only, and in some respects the Sheriff and Sheriff-Substitute 
 differ. For instance (a) the Sheriff (except in Midlothian and 
 Lanarkshire) is not necessarily resident, and is not debarred 
 from Court practice, although be may not act as an advocate 
 in any cause arising in his own sheriffdom; whilst the Sheriff- 
 Substitute is resident in his jurisdiction, and is debarred from 
 practice; (b) the Secretary for Scotland may grant the Sheriff 
 leave of absence and appoint an interim Sheriff for any 
 " reasonable cause," bul a1 the Sheriff's expense, whilst, in the 
 case of the Sheriff-Substitute, the Secretary for Scotland is 
 empowered to nominate, and the Treasury to pay, an interim 
 Sheriff-Substitute, but that only in the single case of the 
 disability through illness of the resident Sheriff-Substitute,
 
 JUDGES' POWERS AND DUTIES 
 
 absence of a Sheriff-Substitute from any othei • 
 
 matter of arrangemenl with his Sheriff; (c) a 
 
 Substitute cannot obtain a retiring allowance in 
 
 sinners unless he lias served a1 Leasl ten yi hilsi the 
 
 Treasury have a discretion to make a modified alio 
 
 a Sheriff, notwithstanding he may not have served foi 
 
 years. 
 
 Appendix, s. 15-21. 7 Ed. VII. c. 51, b. I 
 
 24. The Sheriff and the Sheriff-Substitute are tin- only 
 officials connected with the Sheriff Court of Scotland who 
 exercise strictly judicial functions. In tin' al 
 direction from the Secretary tor Scotland, and subject to the 
 statutes, each Sheriff has authority to regulate the business 
 of his sheriffdom, and to make all necessary orders for the 
 instruction or direction of Court officials, but, subject to this 
 general control, the judicial actings of the Sheriff and his 
 Substitute are not as they once were, a common responsibility, 
 but each lias an independent judicial responsibility, the 
 Sheriff-Substitnte (now erroneously so-called) having 1" i 
 an independent judge of first instance, and the Sheriffs 
 strictly judicial function being- in practice restricted to t 1 
 review. Some matters, at common law, and in accordance 
 with long-established usage, as well as under various stat 
 are relegated to the Sheriff alone; others are relegated to the 
 Sheriff-Substitute alone. In many statutes \]ir word " Sheriff " 
 is defined as including " Sheriff-Substitute," but such a p 
 sion is not necessary, and its omission does not infer that 
 statutory jurisdiction was intended to be conferred upon the 
 Sheriff to the exclusion of the Sheriif-Substitute. The Inter- 
 pretation Act of 1889 provides, as regards statutes pa-.-! 
 that date, that, unless the contrary intention ap] 
 "Sheriff" includes "Sheriff-Substitute." But this only 
 expressed the recognised law, for a quarter oi a century 
 earlier the Court of Session had ruled that "All jurisdiction 
 "conferred on the Sheriff, to be exercised in the Sheriff Court 
 "according to the ordinary rules and practice in 'he Sheriff 
 "Court, is within the jurisdiction of the Sheriff-Substitute 
 "also." 
 
 52 & 53 Vict. c. 63, s. 28. Fleming I' 
 
 188 (Lord Co
 
 12 THE COURT. 
 
 6. The Sheriff-clerk. 
 
 25. !n promoting the smooth working of the judicial 
 machine, there is no more important official than the Clerk 
 of Court. Judges and agents, in matters of form, are alike 
 very liable to err, and many an error is averted by the fact 
 thai between them lies Ike office of Sheriff-clerk, an official 
 whom the old statute of 1592, anent the appointment of Sheriff- 
 clerks, calls an "honest, famous man." The responsibilities 
 of Hie present-day Sheriff-clerk are very different in kind, 
 but they are vastly greater in extent, than those of early times. 
 The early Sheriff-clerk, who was nominated by the Crown and 
 was independent of the Sheriff, may have had his own troubles 
 in balancing the Sheriff's accounts of the King's revenues, 
 and in seeing to it that the revenues collected found their way 
 to Exchequer, but he had none of the continuous anxiety 
 arising from present-day methods of haste and bustle which 
 have invaded even the precincts of the law Courts, and are so 
 provocative of error in working out the ever-increasing mass 
 of often ill-digested statutes, which are every year sent from 
 Parliament for administration in the Sheriff Court, which has 
 become the recognised executive of legislation affecting 
 Scotland. 
 
 Acts 1540, 1555, 1579, 1592. 
 
 26. The Sheriff-clerk, like the Sheriff and Sheriff-Substi- 
 tute, is a Crown-nominated official, and the office of Sheriff- 
 clerk has existed from the earliest times. None of the statutes 
 strictly relating to Sheriff Court procedure made special 
 mention of the Sheriff-clerk till the Judicature Act of 1825 
 directed that he was to discharge his duties personally. The 
 Sheriff-clerk's office is recognised also in the Act of 1838, where 
 he received certain statutory directions as to book-keeping, 
 making up jurors lists, and the like, and where the principle 
 was introduced of paying the Sheriff-clerk by salary instead 
 of by fees, and applying the surplus Court dues towards 
 meeting the expenses of maintaining the judicial establishment. 
 
 6 Geo. IV. c. 23, s. 6. 1 & 2 Vict. c. 119, s. 16. 27, 28, 
 
 29. 
 
 27. The Sheriff-clerk has, however, from the earliest times 
 been entitled to execute his office by deputy. The older statutes
 
 THK SHERIFF-CLERK. 
 
 referring- to the Sheriff-clerk's duties expressly recognise 
 and specifically include the depute in the statutor 
 The Sheriff-clerk's responsibility for his depute 
 only applies to their actings within the scope of their employ- 
 ment. The Sheriff-clerk, a1 his own hand, appoints and dis- 
 misses the deputes. The Depute Sheriff-clerk has no inde- 
 pendent authority. He can act only as repr< 
 Sheriff-clerk. Upon the death of the Sheriff-clerk the 
 authority of the depute ceases, a circumstance which upon 
 occasion might lead to inconvenience; but probably any judge 
 has, upon emergency, an inherent power to appoint a Clerk of 
 Court fro hoc vice; and an interim appointment of a Sheriff- 
 clerk can be made by the Court of Session without delay, 
 should the office be suddenly left vacant. Having- regard to 
 the special duties assigned to the Sheriff-clerk under the Small 
 Debt Acts, it is perhaps to be regretted that the Sheriff Courts 
 Acts do not contain a provision that a depute may act pending 
 the appointment of a new Sheriff-clerk, as an Honorary Sheriff- 
 Substitute may do, pending the appointmenl of a new Sheriff. 
 
 Acts 1540, c. 12, 1555, c. 7, 1579, Heddle v. Garioch, 1827, 5 S. 
 
 c. 13. 503. 
 
 6 Geo IV. c. 23, s. 6. Watt v. Ligertwood, &c, 1874. 
 1 Vict. c. 41, s. 17-25. 1 R. (H.L.) 21. 
 
 7 Ed. VII. c. 51, s. 17. Ld. Adv. Pet., 1880, 8 R. 13. 
 
 28. There is no statutory qualification for the office of 
 Sheriff-clerk. He is in the present day an official with varied 
 and often most important duties, and in some statutory matters, 
 as, for instance, under the Workmen's Compensation Act. he 
 has sometimes to act upon his own initiative. At one tune 
 it was a statutory requirement that he should be a notary 
 public. This was, of course, most important when the Sheriff- 
 clerk or his depute had duties and responsibilities as regards 
 the completion of titles by sasine, but it has long ago ce 
 
 to be of any practical advantage that the Sheriff-clerk be a 
 notary public, and this requirement has long ago become 
 obsolete. 
 
 6 Ed. VII. c. 58, s. 13, Sch. II., Stat. Rules (W.C 27th 
 
 s . 9. June, 1907, s. 25. 
 
 Act of Sederunt, 26th June, 1907, 
 s. 5. 
 
 29. Neither a Sheriff-clerk nor his salaried deputi 
 entitled to act as a procurator in his own Court, unless he is 
 personally a party in the cause; but. if he is a law agent,
 
 14 THE COURT. 
 
 be is not, unless lie is precluded l>\ the terms of his commission, 
 isarily precluded from practising generally as a Law agent. 
 
 1 \ t c. 41, 8. 25. S bh . Mansun. 1871, 9 M. 
 
 Smith v. Rob< rtson, 1828. 5 S. 492. 
 
 788. M'Beth o. Troy, 1873. 11 M. 404. 
 
 7. A I DITOB OF < 'ontT. 
 
 30. The nomination of this official rests with the Sheriff, 
 and tli«' auditor holds office during the pleasure of the Sheriff. 
 The Sheriff-clerk, or his depute, may also be the auditor, and 
 is frequently appointed. There is no statutory qualification 
 Eor this office. The Sheriff Courts Art. 1907, provides that 
 r: Expenses allowed in any action, whether in absence or in 
 " foro, shall, unless modified at a fixed amount, be taxed 
 "before decree is granted for them." The auditor is 
 remunerated by fees payable by the Litigants. 
 
 Appendix, Rulo 99. Act of Sederunt, 10th April, 
 
 7 Ed. YIT. c. 51, Scb. I.. Rul 1908, c. 11. 
 
 99. 
 
 8 I'roCI R ATOR-FISCAL. 
 
 31. This official is appointed by the Lord Advocate, in 
 whom the nomination was vested by the Sheriff Courts A.ct, 
 1907. Formerly he was nominated by the Sheriff. lie is 
 removable from office by the Secretary for Scotland, only for 
 inability or misbehaviour, upon a report of the Lord President 
 and the Lord I us( ice-Clerk. 1 1 is duties lie mainly in the 
 Criminal (Joint, but he has some duties in the Civil Court 
 also. The most important is the conduct of inquiries under 
 the Fatal Accidents Inquiry Acts of ISO") and 100(1. In some 
 quasi-ci •iminal proceedings, such as breach of interdict and the 
 like, the concurrence of the procurator-fiscal is requisite, 
 although the proceedings are taken in the Civil Court. 
 
 Appendix, s. 22-24. 6 Ed. VII. c. 35. 
 
 58 & 59 Vict. c. 36. 7 Ed. VII. c. 51, s. 22-24. 
 
 9. Officers of Court. 
 
 32. The proper execution of Legal warrants and decrees 
 is not less important than their careful pronouncement, and 
 in each sheriffdom officers are for this end appointed by the 
 Sheriff. They are selected by him after examination as to
 
 OFFICIOS OF Col'RT. 15 
 
 their fitness for office, by the Sheriff or by others on I 
 
 and they are required to find emit ion for the due 
 
 their office. Tin; cautioner, however, is only Liable for the 
 
 officer's own illegal actings. He is no1 Liable, nor is the officer, 
 
 for error on the part of his employer. 
 
 Glen v. Black, 1841, 4 D. 36. Beattie v. M'Lellan, 1 146 8 D 
 
 Clason v. Black, 1842, 4 D. 743. 930. 
 
 •'!'"!. An officer has, of course, no authority beyond h i » 
 
 warrant, but for the terms of the warrant he has no res] i 
 
 bility, and he cannot incur any liability -n Long as he acts in 
 
 conformity with his warrant. But, whilsf he has no authority 
 
 to do more than his warrant authorises, he has no authority 
 
 to do less, and he and his cautioner may be liable to a creditor 
 
 who suffers loss owing to the officer refraining from putting 
 
 his entire warrant into execution. Fie is not invested with 
 
 any discretion as to the extent to which lie is to give effect to 
 
 his warrant. 
 
 Scot v. Banks, 1628. M. 6016. Lo Conte v. Douglas, 1880, 8 
 
 Cullen v. Smith, 1847, 9 D. 606. R. 175. 
 
 Couper v. Bain, 1868, 7 M. 102. 
 
 34. An officer, as such, has not authority to receive pay- 
 ment of a debt and to grant a discharge for it, but the creditor 
 may authorise him to do so. It is, in practice, very convenient 
 that he should do so, but the debtor takes the risk of dealing 
 with the officer. A debtor cannot plead against his creditor 
 that he tendered payment, if the tender were made to the 
 officer, and not to the creditor direct. 
 
 Inglis v. M'lntyre, 1862, 24 D. 541 (per Lord Cowan). 
 
 35. The fees payable to officers are regulated by Act of 
 Sederunt by the Court of Session. 
 
 Appendix s 40 \< t of Sederunt. 15th Oct* 
 
 7 Ed. VII. c. 51, s. 40. 1908. 
 
 36. Officers may be suspended or removed from office by 
 the Sheriff who appointed them, or by his successor in office. 
 As an officer must always have a cautioner subject to the 
 Court's jurisdiction, he must find caution anew should his 
 original cautioner die, or become bankrupt, or leave Scotland. 
 The Sheriff may relieve a cautioner upon application.
 
 16 the conn. 
 
 37. A Sherilf-omcer's commission authorises his acting 
 within the sheriffdom of the Sheriff who grants it. The Small 
 Debl Act of L837 extended this authority to the other sheriff- 
 doms as regards citation and diligence under the Small Debt 
 A.cts, if the warrant had been endorsed by the Sheriff-clerk 
 of the sheriffdom where the warrant was to be executed. In 
 the following year, any Sheriff's warrant, whicb til] then had 
 EEective only in his own sheriffdom, was made operative 
 also in other jurisdictions upon endorsation, but it had to be 
 executed by an officer of the sheriffdom of endorsement. In 
 1876 endorsation was dispensed with as regards warrants for 
 service upon a defender subject to the jurisdiction of one 
 Sheriff Court, but residing within another sheriffdom. Under 
 the Sheriff Courts Act of 1907 endorsation is dispensed with 
 as regards warrants of citation, or warrants or precepts of 
 arrestment, proceeding' upon defending actions or liquid 
 documents of debt, and these may now ho executed by an 
 officer either of the sheriffdom where the wan ant was granted, 
 or of that where it is to be executed. But endorsation is still 
 necessary for operating diligence in execution, and Midi 
 warrants still require to be executed by an officer of the 
 endorsing Court. 
 
 Appendix, Rul 
 
 1 Vict. c. 41. 
 
 1 & 2 Vict, c. 119, s. 24. 
 
 Appendix, Rule 10. 39 & 40 Vict, c. 70, s. 12 (1). 
 
 1 Vict. c. 41, s. 12. 7 Ed. VII. c. 51, Sch. I., Rule 10. 
 
 38. It has not been expressly decided whether Sheriff Court 
 warrants may be competently executed by a messenger-at-arms, 
 who is not also an officer expressly nominated for a particular 
 sheriffdom. It is, however, very significant thai several 
 statutes relating to Sheriff Court procedure seem to recognise 
 the messenger-at-arms as an alternative officer of the law, and 
 the decision of the Court in at least one reported case seems to 
 imply that a messenu m may act. In that case a decree in 
 absence had been granted in an action of affiliation and 
 aliment. The decree was extracted, and the defender charged 
 upon it by a messenger-at-arms. Following this, the defender 
 was incarcerated. He then brought in the Court of Session a 
 suspension of the charge upon various grounds, one being that 
 " the charge and warrant following thereon were null in 
 " respect the charge was executed by a messenger-at-arms." 
 The ( lourt refused the note of suspension, and remitted to
 
 OFFICERS OF COURT. 17 
 
 the Sheriff to repone the defenderj and to granl warran 
 his liberal ion upon his finding caution di judicio 
 paying pursuer's expenses. The arguments in thai case, do 
 doubt, were mainly directed to the question whether the cause 
 should bo remitted to the Sheriff or retained in the Courl of 
 Session, and ultimately the Court held thai the proper course 
 was to remit, in order ihat defender mighl be reponed against 
 the decree in absence, and the various objections of defender 
 disposed of by the Sheriff in the reponed process. Although 
 the whole cause was accordingly remitted, and no specific 
 pronouncement was separately made upon the question of 
 the messenger-at-arms, the Court seems, by implication, to 
 have recognised his acting as competent, for, had they regarded 
 a messenger-at-arms as not competent to give a charge upon 
 a Sheriff Court decree, then the charge would have been so 
 obviously inept that the note of suspension would no doubt 
 have been passed. That the Court refused the note seems to 
 imply that tliey regarded the charge as having been validly 
 given by the messenger. 
 
 Cheyne v. M'Gungle, I860, 22 D. 1490. 
 
 39. In the Cessio Act of 1836, giving the Sheriff jurisdic- 
 tion in the process of cessio bonorum, it was declared thai " the 
 " Sheriff-clerk, and messenger s-at-arms , and all Sheriff-officers 
 " in the several sheriffdoms in Scotland, shall have power to 
 " act in their respective offices in relation to such processes." 
 The certificate of postage of the notice of cessio letters to 
 creditors might be granted by the debtor's agent, *' or by a 
 "messenger or Sheriff-officer." The same provision appears 
 in the Debtors (Scotland) Act, 1880. 
 
 6 & 7 Will. IV. c. 56, s. 1 and 4. 43 & 44 Vict. c. 34, s. 9 (1). 
 
 40. In the Sheriff Court Act of 1838 proceedings were 
 
 declared to be regular if " served or executed by the umal officer 
 
 " of the law," a term which would appear to include a 
 
 messenger. The same general expression was used in the 
 
 Summary Procedure Act of 18G4, and is used in the Summary 
 
 Procedure Act of 1908, which authorises warrants being 
 
 executed by "any officer of law." 
 
 1 & 2 Vict. c. 119, s. 23. 8 Ed. VII. c. 65, s. 2, 25. 
 
 27 & 28 Vict. c. 53, s. 8.
 
 IS THE COURT. 
 
 11. The Sheriff Court Act of 1853, in setting forth pro- 
 it. lure rules for the process of removing', declared a lease or 
 extract to be a warrant "to any Sheriff-officer or znessenger-at- 
 " arms of tho county within which such lands or heritage are 
 "situated," to eject a tenant, and such officer or messenger 
 was directed " to return an execution thereof in common form" 
 -thai is to say, to the Sheriff-clerk. The 1853 Sheriff Court 
 Art Eorm of notice was adopted in the Agricultural Holdings 
 A. i oi L883, and although thai Act was repealed in 1908 the 
 new Legislation did nol discredit the principle. 
 
 16 & 17 Vict. c. 80, s. 30. 8 Ed. VII. c. 64, s. 18. 
 
 46 & 47 Vict. c. 62, s. 28. 
 
 42. Under the Bankruptcy Act, L856, if a bankrupt do not 
 
 attend for examination the Sheriff may grant warrant for his 
 apprehension, and such warrant is declared to be sufficient 
 authority " either within or beyond the territory of the Sheriff 
 " in Scotland to messengers-at-arms and to the officers of the 
 " Sheriff," to apprehend and bring the bankrupt for examina- 
 tion. In like manner, if third parties fail to attend to give 
 evidence, warrant may be granted for their apprehension, and 
 such warrant is declared to be " sufficient to authorise messen- 
 " gers-at-arms or the officers of the Sheriff to execute the same 
 " either within or without the territory of the Sheriff." 
 19 & 20 Vict. c. 79, s. 88 and 90. 
 
 43. The most direct enactment of all, however, is that of 
 the Extracts Act of 1892, which introduced short forms of 
 extracts in the Sheriff Court, and which expressly declares 
 that "execution on said extracts shall be carried out by 
 "messengers-at-arms, officers of Court, or others entitled to 
 " execute diligence thereon. " 
 
 55 & 56 Vict. c. 17, s. 8. 
 
 44. It is thought, therefore, that a messenger-at-arms may 
 
 competently execute all warrants granted by the Sheriff in his 
 ordinary Court, although there are Sheriff Court obiter dicta to 
 the contrary. 
 
 Hamilton v. Bain, 1857, 1 Guth. Bel. Ca. 405. 
 
 45. It is not, however, dear that a messenger-at-arms may 
 competently act in the Small Debt Court. The Extracts Act 
 of 1892 expressly excludes the Small Debt Court, and under
 
 OFFICERS OF COURT. ig 
 
 the Small Debt Act of 1837 the summons is addree ed to 
 "officers of Court" (i.e., the Sheriff Court), and is declared to 
 be "sufficient warrant and authority to any Sheriff's offia 
 "summoning the defender to appear." It is thought, tl 
 fore, that a messenger-at-arms, who might perhaps, on the 
 analogy of the Ordinary Court procedure, have been competent, 
 had the Small Debt Act been silent on the subject, is expn 
 excluded under the terms of the Small Debt Act itself. 
 1 Vict. c. 41, s. 3, Sch. A. 55 & 56 Vict. c. 17, s. 2. 
 
 46. If a messenger is incompetent to act under the Small 
 Debt Acts, then he is also incompetent in summary removings, 
 for the process of summary removing is to be conducted " in 
 " the summary manner in which proceeding's are conducted 
 "under the Small Debt Acts." Although neither the form of 
 complaint, nor the form of decree, in the Sheriff Courts A< t, 
 1907, in actual words expressly restricts service or execution 
 in Sheriff-officers, it is thought that the general direction that 
 such summary removings are to follow Small Debt procedure 
 covers the exclusion of messengers. 
 
 Appendix, s. 38, Rule 119. 2 & 3 Geo. V. c. 28, Sch. I. 
 
 7 Ed. VII. c. 51, s. 38, Sch. I., (119). 
 
 Rule 119, Forms K and L. 
 
 47. If a messenger-at-arms does act as a Sheriff-officer, he. 
 of course, assumes a Sheriff-officer's responsibility in every 
 respect. There is no practical difference in the functioi 
 
 a messenger and an officer, although the one is appointed by, 
 
 and answerable to, the Lyon King-at-arms, and the other is 
 
 appointed by, and answerable to, the Sheriff. There is this 
 
 difference, however, in the scope of their authority that, whilst 
 
 a messenger may apparently act as a Sheriff-officer, the latter 
 
 may not act as a messenger, unless he is specially authorised 
 
 by the Court of Session, under their powers to that effect in 
 
 the Court of Session Act of 18G8, which powers, however, are 
 
 expressed so as to apply only to service, and do nol seem to 
 
 extend to execution of diligence, although the Court has 
 
 authorised a Sheriff-officer to execute diligence upon an extract 
 
 registered protest recorded in the Bill Chamber, and a! 
 
 charge a defender in a decree of removing for payment of 
 
 expenses thereby decerned for. 
 
 31 & 32 Vict. c. 100, s. 19. Robertson Petn., 1893, 20 B. 712. 
 
 N. of S. Bank v. Harrison, 1891, 
 18 R. 460.
 
 20 THE COURT. 
 
 10. Law Agexts. 
 
 48. In the Sheriff Court, as in all other Courts of law, a 
 litigant may conduct his own case, bui in the ordinary Sherifi 
 Court it is not of frequent occurrence that a party conducts 
 his case personally. It' ho does, he must, of course, observe 
 the rules of procedure, in the same manner as au agent. 
 
 49. Under the Small Debt statutes, a party may appear 
 personally, or be represented by a member of his family, or 
 such other person as the Court may allow, and under the 
 Workmen's Compensation Act, 1906, "any person authorised 
 " in writing " may appear for any party to the arbitration. 
 The original policy of the Small Debt Acts was to discourage 
 professional pleaders, and a law agent was only allowed to 
 appear by leave and on special cause shown. But there is no 
 restriction as to the nature of the debt or demand which may 
 arise in the Small Debt Court, and the legal questions which 
 do arise there, although of small financial value, are often of 
 importance otherwise. In most Courts, a broad view was 
 from the very first taken as to the special cause which would 
 warrant the litigants and the Court having the assistance of 
 agents. It was not, however, till 1889 that remuneration to 
 agents was recognised as falling within party and party costs. 
 Even then it was grudgingly conceded, and the invidious duty 
 was laid upon the Sheriff of selecting the cases in which a 
 party might have the privilege of being assisted by his agent. 
 The Sheriff Courts Act, 1907, placed this matter on the footing 
 upon which it should always have been. Appearance by a 
 Law agent is now matter of right, not of privilege. 
 
 Appendix, s. 44. 6 Ed. VII. c. 53, Sch. II., s. 
 
 1 Vict. c. 41, s. 14, 15, Sch. 8. 17 (6). 
 
 7 Ed. VII. c. 51, s. 44. 
 
 50. In any Sheriff Court process, parties may be repre- 
 sented by counsel. No doubt the Sheriff Courts Acts, through- 
 out the enactments and rules of procedure, do not specifically 
 mention counsel The statutes speak only of an agent, and 
 that expression is defined as meaning " a law agent enrolled in 
 "terms of the Law Agents (Scotland) Act, 1873." But it has 
 long been recognised in practice that an advocate has right 
 of audience before any tribunal in Scotland, unless expressly 
 debarred by statute, and the statutory provisions referred to
 
 LAW AGENTS. 21 
 
 do not deprive him of thai right. Whether cow 
 should in a particular case be included in party and ; 
 costs is quite another matter. Thai re ts with the Sheriff 
 before whom counsel appears. 
 
 Appendix, s. 3 (,,). 7 Ed. VII. c. 51, b. 3 [g), Sch I , 
 
 Act 1424, c. 45.' Rule 140. 
 
 36 & 37 Vict. c. 63. 
 
 51. Judicial proceedings before the Sheriff Cou] 
 generally conducted by enrolled law agents. Formerly in • 
 sheriffdom there were local procurators of Court, formed inl i 
 loeal Faculties, who examined applicants for admission, and 
 reported upon their qualification to the Sheriff, by whom they 
 were then admitted to practise in his Courts. Only a procur- 
 ator who had been so admitted was entitled to practise. Bui 
 although the Faculties of Procurators still exist, and the La 
 Agents Act of 1873 expressly saved them as legal societies, the 
 members of the Faculties have ceased to enjoy the exclusive 
 privilege of practising in the Courts, and any person admitted 
 as a law agent in Scotland, and whose name has been enrolled 
 in the official register of law agents at Edinburgh, wherever 
 his domicile or place of business may be, is entitled, upon 
 payment of a small fee, to be put upon the roll of any Sheriff 
 Court in Scotland, and there to practise, subject only to the 
 restriction that he may not borrow a process unless he have a 
 place of business within the jurisdiction of the Court. 
 
 Appendix, Rule 16. 7 Ed. YII. c. 51. Sch. !.. Rule 16. 
 
 36 & 37 Vict. c. 63, 19, 13, 15. 
 
 52. A law agent is not admitted till he is twenty-one years 
 of age. His education includes preliminary examinations in 
 general knowledge, attendance at University law classes, the 
 serving of an apprenticeship, and a final examination in law. 
 
 53. The first examination in general knowledge must 
 passed before the apprenticeship is entered upon, but the second 
 may be taken after the apprenticeship has been entered upon, 
 and both may be evaded by the possession of certain scholastic 
 certificates or University degrees. 
 
 54. The period of apprenticeship under indenture is five 
 years, of which the last two years may he transferred to another 
 master. In special cases service with several masters may he
 
 22 THE COURT. 
 
 accepted. Three years will suffice in the case of one who 
 holds a University degree in arts or law, or an English 
 solicitor, or an English barrister, or a Scots advocate. 
 
 55. The essential University law classes are Scots law and 
 conveyancing, and attendance at these must have been com- 
 pleted before application can be made for admission as a law 
 agent. The application is made to the Court of Session, and 
 may l.e entertained by any Lord Ordinary, who remits the 
 applicant to the examiners for examination in Scots law, con- 
 veyancing, and forms of process. If the applicant holds a law 
 degree of a Scots University, his examination is restricted to 
 forms of process. 
 
 36 & 37 Vict. c. 63. 1893 ; 12th July, 1893 ; 27th 
 
 Acts of Sederunt, 20th December, January, 1895; 11th July, 
 
 1873 ; 28th January, 1874 ; 4th 1899 ; 26th May, 1906. 
 
 November, 1886; 18th March, 
 
 5G. When a law agent has been admitted, he is entitled to 
 have his name enrolled in the register of law agents, created 
 under the Law Agents Act, 1873. Once his name has been 
 entered, it cannot be removed, unless by order of the Court of 
 Session, " upon application duly made," either by a third party 
 or by the law agent himself. A third party must qualify his 
 interest, and such applications are usually made either by the 
 legal society of which the agent was a member, or by one or 
 more of the procurators of the district where the agent prac- 
 tised. The Court must be satisfied that there is good reason 
 for removing an agent's name from the register, and the order 
 of Court must express the reason. Conviction of crime is a 
 sufficient reason. Expulsion from a local Faculty gives that 
 Faculty a title to make application in the Court of Session for 
 removal of the law agent's name from the general register. 
 
 Incor. Law Society v. Purves, Innes v. Macdonald, 1899. 2 
 
 1897, 24 R. 394. F. 6. 
 
 Aberdeen Society of Solicitors v. Glasgow Faculty of Procurators 
 
 Sim, 1897, 24 R. 511. v. Colquhoun, 1900, 2 F. 1192. 
 
 57. Although a woman may have completed the requisite 
 course of study, the registrar cannot enrol her as a law agent 
 in the general register, the Court of Session having decided 
 that the statutes apply only to males. 
 
 Hall v. Incor. Law Society, 1901, 3 F. 1059. 
 
 58. An enrolled law agent is entitled to be enrolled to
 
 LAW AGENTS. 
 
 practise in any Sheriff Court. In one instance only may he 
 
 practise in a Court of Session cause. A civil jury trial may he 
 directed to be tried at a circuit town, in which evenl a law 
 agent, qualified to practise in any Sheriff Courl compi 
 within the Circuit Court district, may attend as sole aj 
 and be allowed the same fees as are allowed to agents in the 
 Court of Session. But it is very seldom that a law agent has 
 the opportunity of exercising this limited privilege, for civil 
 jury trials are in practice not taken at Circuit Courts. 
 31 & 32 Vict. c. 100, s. 46-50. 
 
 59. An unqualified person may not discharge the functions 
 of a law agent, unless permitted by statute (as, for instance, 
 under the Small Debt Act and the Workmen's Compensation 
 Act), under penalty of fine or imprisonment, ami a prosecution 
 against an unqualified person so acting may be instituted under 
 the Law Agents and Notaries Act, 1891, by the procurator- 
 fiscal of the jurisdiction where the offence is committed, or by 
 any society of law agents, or by any individual law agent. 
 
 1 Vict. c. 41, s. 15. 6 Ed. VII. c. 58. 
 
 52 & 53 Vict. c. 26, s. 8. Act of Sederunt, 26th June, 
 
 54 & 55 Vict. c. 30, 8. 3. 1907, s. 1. 
 
 60. No person other than a qualified law agent can recover 
 fees for legal advice given, or for assistance rendered, in 
 the conduct of any legal process. This general rule is 
 qualified as regards proceedings under the Workmen's Com- 
 pensation Act, 1906, for a member of the workman's family 
 or the representative of the employer may by leave of the Coui t 
 get an allowance for loss of time or travelling charge-. 
 
 54 & 55 Vict. c. 30, a. 3. Act of Sederunt, 26th June, 
 
 6 Ed. VII. c. 58, s. 1. 1907, s. 1. 
 
 61. In addition to his common law lien (which is, how- 
 ever, no more than a bare retention right) over documents 
 (not being productions in a judicial process) which have come 
 into his hands, and which he may hold for payment of his 
 proper fees and charges (but not for cash advances), a law 
 agent who conducts a Court process may be entitled, under the 
 Law Agents Act, 1891, to a charge upon any property which 
 the law agent shall, in the course of the proceedings, have 
 recovered or preserved on behalf of his client, for his I
 
 24 THE COURT. 
 
 expenses in connection with that Court process. Such a charge 
 
 is constituted by decree of declarator by the Sheriff before 
 
 whom the Court process depends, and, after the dale of the 
 
 decree of declarator of charge, the client's acts and deeds are 
 
 void as against the charge, "except acts and deeds in favour 
 
 " of a bona fide purchaser." 
 
 54 & 55 Vict. c. 30. s. 6. Carruthers v. Carruthers, 1897, 
 
 Christie v. Ruxton, 1862, 24 D. 24 R, 363. 
 
 1182. 
 
 G2. The statute which creates this charge gives no express 
 directions as to its relation to diligence on the part of other 
 creditors of the client. The statutory declarator of charge 
 seems to go no further than to protect the fund or property for 
 the law agent, as against the client. Its effect is apparently 
 analogous to that of an arrestment, and, as in competition 
 with other creditors' claims, it must, if it is to be of any 
 practical use, take precedence, the theory of the statute being 
 that but for the law agent's efforts, that asset would not have 
 existed at all, and so it is proper that the law agent should 
 have a first charge upon it for the costs incurred in creating 
 the asset. 
 
 54 & 55 Vict. c. 30, s. 6. Philip v. Wilson, &c, 1911, S.C. 
 
 M'Crae v. M'Crae, 1879, 15 1203. 
 
 S.C.R. 255. 
 
 63. Whether any property has been " recovered or pre- 
 served," in the sense of the Act, is in each case a question 
 of circumstances. The Courts have not laid down any general 
 rule on the subject. On such a matter a general rule is 
 probably impracticable. The influence of the law agent in 
 preserving the property must be personal to him. 
 
 Hutchison's Trs. v. Hutchison, Smart & Co. v. Stewart, 1911, 
 
 1902, 40 S.L.R. 200. S.C. 668. 
 
 64. The privilege of obtaining such a declarator of charge 
 is not necessarily restricted to the law agent primarily 
 employed in the conduct of a litigation. All the law agents 
 who have, in the opinion of the Court, reasonably been profes- 
 -ion;illv engaged in the matter, are within the scope of the Act. 
 Thus the privilege of obtaining such a declarator of charge is 
 available, not only to the agent who acts primarily for the 
 client, but also to others whose services are requisitioned by
 
 LAW AGENTS. 25 
 
 him on his client's helm It', as, for instance, an Edinbui . 
 or an agent in another sheriffdom. 
 
 Bannatyne & Co. v. Goodwins, .1 in liquid 
 
 1907/ S.C. 705. 
 
 65. The fees exigible by Law agents for the conduct of a 
 Court process are regulated by Act of Sederunt, (inly 
 agent is recognised as entitled to tees for the conduct i 
 Court process. If he shares his fees with another l;i \\ a£ 
 that is a private arrangement. Prior to 1ST-! it was illegal 
 for a law agent to share his fees, even with another law agent. 
 It is still illegal to share fees with any person who is no1 
 a law agent, and such a person accepting a share of fees earned 
 in legal practice might render himself liable in penal tie- 
 under the Stamp Acts. The Law Agents Act has sanctii 
 division of fees as between law agents, but as between law- 
 agents only. An agent who employs another law agent 
 should have his client's authority to do so, otherwise the client 
 may decline liability for the other agent's fees. 
 
 Appendix, s. 40. M'Laren v. M'Dougal, 1881, 8 
 
 36 & 37 Vict. c. 63, s. 21. R. 626. 
 
 7 Ed VII c 51, s. 40. Clark v. Macdonald & Scnulze, 
 
 Act "of Sederunt, 10th April, 1902, I I', lis 
 1908. 
 
 GG. A law agent who has conducted a Court process, in 
 which his client is found entitled to expenses, has the privilege 
 of obtaining decree for these expenses in his own name, but 
 he does not, by so taking decree, discharge his client of liability 
 for his fees, if he fail to recover under the decree. The client 
 cannot defeat his agent's right by making a settlement with 
 the other party, after expenses have been found due, or the 
 case has gone so far that expenses would probably be found 
 due, nor can the unsuccessful party, who may have a counter 
 claim against the successful party, set up such counter claim 
 against the expenses, if the law agent has moved for, and 
 obtained, decree therefor in bis own name. The effei 
 such a decree is to make the law agent personally the crt 
 of the unsuccessful litigant for the amount of the 
 expenses. An interlocutor of the Sheriff-Substitute alio 
 decree in the agent's name is not appealable without leave, 
 and it is doubtful if it is appealable at all. 
 
 Appendix, Rule 99. , Macready «. Douglas, 1882, 1 
 
 7 Ed. VII. c. 51, Sch. I., Rule q jBLtt* ^^ ^ 
 
 ay - S.C.R. 324.
 
 THE COURT. 
 
 67. The initial writ, by which an action is commenced, 
 may be signed by the pursuer or his agent, but in practice is 
 almost invariably signed by the agent. A law agent, there- 
 fore, Bhould be careful to sec thai be is legally authorised to 
 make the claim or demand set forth in the writ, for if lie act 
 without authority, and thereby occasion expense to another 
 party, he may render himself liable personally in damages 
 or expenses. 
 
 Appendix, Rules 1, 2. Robertson v. Ross, 1873, 11 
 
 7 Ed. Yir. c. 51. Sen. I., Rule 3. M. 910. 
 
 M Villi v. Sharpe, 1862, 24 1). 
 393. 
 
 68. A law agent, like any other skilled person, is liable for 
 the consequences of gross negligence and want of skill in the 
 exercise of bis profession, but negligence or want of skill is 
 not necessarily to be inferred merely because he may have 
 given professional advice which tbe event proved to be unsound. 
 He is not personally liable for all the statements made in 
 Court pleadings, although he may have signed them, if be 
 has been duly authorised to make them, nor is lie liable for 
 error on the part of an officer or of a correspondent-agent whom 
 lie may employ; but for his own personal negligence in the 
 ci >iid net of a Court process a law agent may become liable, 
 cither to bis own client or to other parties. A law agent might 
 possibly — although the grounds would require to be very clear 
 
 also be liable for defamatory statements made in the course 
 
 of tbe conduct of Court proceedings if be act maliciously, and 
 
 malice might possibly be inferred if such statements were very 
 
 obviously not pertinent to the issue in the cause. If, therefore, 
 
 a client insist in having dangerous statements inserted in 
 
 pleadings, it is a wise precaution to have the papers signed by 
 
 the client. 
 
 Johnston v. Scott, 1829, 7 S. 234. Hamilton r. Elmslie, 1868, 7 M. 
 
 i:.,vn. r. M'Gregor, 1862, 24 D. 173. 
 
 1126. 
 
 69. In every case the law agent should obtain a mandate 
 from his client. If he does not do so, he runs the risk of being 
 held personally liable for expenses allowed against bis client. 
 If his authority to act is challenged, be is bound to produce 
 his mandate, and the opposing party is entitled to have the 
 process sisted till he does so. Possession by a defender's 
 agent of the service copy of the writ is generally accepted as
 
 LAW AGENTS. 27 
 
 sufficiently vouching liis authority to enter appearance and 
 state a defence; but, in special circumstances, a defender's 
 agent, as well as a pursuer's agent, may be ordered to produce 
 a mandate, especially in a case where there are several defenders 
 called, and the agent has possession of only one service copy. 
 A general mandate to act covers all ordinary procedure in a 
 process. But it is very doubtful whether a law agent's 
 mandate invests him with any discretionary authority to bind 
 his client, such as a counsel possesses, in matters beyond the 
 scope of routine procedure. If it is proposed, for instance, 1" 
 abandon an action, or to compromise it, or to appeal to a 
 higher Court, or to submit the subject-matter of dispute to 
 arbitration, or refer it to a judicial referee, or to delay execut- 
 ing diligence, or to take any extraordinary step, the law agent 
 should see that he has his client's authority to take the step; 
 and in causes of importance it is not wise to rely merely upon 
 the fact of the client having knowledge that such a step is 
 proposed, and has not objected. Specific written authority 
 should, for the law agent's protection, be obtained. 
 
 Cowan r. Farnie, 1836, 14 S. 
 
 Stephen v. Skinner, 1863, 2 M. 
 
 634. 
 
 287. 
 
 Black v. Laidlaw, 1844, 6 D. 
 
 Cameron v. Mortimer, 1872, 10 
 
 1254. 
 
 M. 817. 
 
 Philip v. Gordon, 1848, 11 D. 
 
 Robertson v. Ross, 1873, 11 M. 
 
 175. 
 
 910. 
 
 M'Call v. Sharpe, 1862. 24 D. 393. 
 
 Mitchell & Baxter v. Cheyne, 
 
 
 1891, 19 R. 324.
 
 CHAPTER II. 
 
 JURISDICTION. 
 
 1. General. 
 
 70. As now reconstituted, the Sheriff Court has almost 
 recovered its original character as a Court of practically 
 universal jurisdiction. It also now exercises extensive and 
 varied special jurisdiction conferred by statute. There are 
 matters, however, still beyond its scope, although some of 
 them are, from their nature, peculiarly suited for being 
 disposed of locally. In some matters the Sheriff Court 
 jurisdiction is privative, in others it is limited in extent ; in 
 some it does not exist at all. Where it docs exist, and is not 
 privative or appellate, it is always concurrent with that of 
 the Court of Session, unless the contrary is expressly provided 
 by statute. The various statutes of the last seventy years, 
 and in particular the Sheriff Courts Acts, 1907 and 1913, have 
 gnatly altered the complexion of the Sheriff Court jurisdic- 
 tion. It may be convenient to consider separately the various 
 Bpheres in which the Sheriff Court has or has not jurisdiction, 
 and to inquire bow Ear it has been affected by legislation. 
 
 Appendix, s. 5. 2 & 3 Geo. V. c. 28 
 
 7 Ed. VII. c. 51, s. 5. 
 
 'J. Xoiui.K < hi K nwi. 
 
 71. The Sheriff Courl has never possessed jurisdiction 
 arising ex nobile officio, nor lias any inferior Court in Scotland. 
 This equity jurisdiction belongs alone to the Court of Session, 
 which, as tin Supreme Court of civil jurisdiction in Scotland, 
 has an inherent and exclusive power of finding- a remedy for 
 wrongs, for the remedy of which there is no express 
 process or established usage. When, therefore, extraordinary 
 judicial powers are required to be exercised in exceptional 
 circumstances, the aid of the law can be invoked only in the 
 Court of Session. Much of what has long; been recognised
 
 NOliILK OKFK'IIM. 
 
 as exclusive Court of Session jurisdiction has been buill up 
 upon nohile officium, or equity power. Ji was for this reason 
 that reductions and declarators, and most actions concerning 
 heritable rights, came to be regarded as incompetent in the 
 Sheriff Court. But the distinction between common law and 
 equity jurisdiction has never, in Scotland, been very marked, 
 and, in practice, many actions which originally were founded 
 on equity, have become merged in common law procedure, 
 and, by usage, and the effect of ever-broadening- statutes, 
 the jurisdiction of the Sheriff Court has been steadily 
 increasing'. 
 
 Ersk. I. 3-22. Ersk. I. 4-3. 
 
 3. COXSISTORIAL. 
 
 72. The most important class of case to some extent still 
 incompetent in the Sheriff Court is that known as " consis- 
 " torial," a term in which survives the echo of the once 
 important ecclesiastical jurisdiction, a conclave of bishops 
 being termed a consistory. Such causes originally did not come 
 before a civil Court at all, but were disposed of by the Bishop's 
 Court, and later by the commissary, an office the separate 
 jurisdiction of which, in some of its aspects, survived till thirty 
 years ago, but is now merged in that of the Court of Session, 
 and to some extent also in that of the Sheriff Court, Tin- 
 Sheriff Courts Acts, 1907-1913, have conferred certain impor- 
 tant consistorial jurisdiction upon the Sheriff Court; and, for 
 the proper understanding of the peculiar position of such 
 actions, a brief reference to the office of commissary may be 
 useful. 
 
 73. The commissary was an independent judge, not attached 
 either to the Supreme Court or to the Sheriff Court. He was 
 the delegate of the bishops, the ecclesiastical Courts prior to the 
 Reformation having had exclusive jurisdiction to judge in all 
 matters concerning religion. This, at the hands of the clergy, 
 received a very broad interpretation, and in time the commis- 
 saries came to have a wide, mixed jurisdiction, including not 
 only consistorial causes proper, which were peculiar to the 
 Commissary Court, as were also all proceedings in connection 
 with the estates of deceased persons (what is still known as 
 commissary practice), but also including a concurrent jurisdic-
 
 30 JURISDICTION. 
 
 tion with the civil ('units in matters so prosaic, and so far 
 removed from the scope of the ecclesiastical domain, as actions 
 for the recovery of debi up to the value of £40 Scots, or 
 without Limitation of value if the defender elected to prorogate 
 the jurisdiction. In some money claims the commissary had 
 even exclusive jurisdiction, as, for instance, in a claim oi 
 damages for Blander conjoined with a conclusion tor what was 
 Called palinode, wherein the defender was required to recant 
 ami apologise for the slander under pain of penance, a process 
 which, of course, lias long ago become obsolete, although it 
 is perhaps to be regretted that the principle underlying it 
 has not been preserved, for a decree of damages for slander is 
 often a barren consolation, and cases are not infrequent in 
 the Sheriff Court where an older to apologise, under pain of 
 imprisonment, would be appropriate. 
 Ersk. I. 5, 25, 26. 
 
 74. The original commissaries were not lawyers, but clerical 
 officials, whom the bishops nominated. But, when the Con- 
 vention of Estates in 15G0 repudiated all Papal jurisdiction, 
 the ecclesiastical Courts' jurisdiction was assumed for the time 
 by the Court of Session, until in 15G3 the ecclesiastical juris- 
 diction was restored by Queen Mary, the Commissary Court 
 being then constituted by an official charter, granting to the 
 commissaries under royal authority the whole jurisdiction 
 which hail previously been exercised by the ecclesiastical 
 Courts under Papal authority. The commissaries were still 
 nominated by the bishops, and the Court of Session became the 
 ultimate Courl of Appeal, although up till 1823 the Connnis- 
 Bary Couri at Edinburgh was interposed as a Court of review 
 of the judgments of the other local Commissary Courts. 
 
 .Vt 1609, c. 6. Ersk. I. 5, 27, 28. 
 
 4 Geo. IV. c. 97. 
 
 75. The local commissariats <>(' Scotland had by 1823 come 
 
 to number twenty-three. Each commissary administered the 
 law within his own territory. In addition to these, the Com- 
 iry Court at Edinburgh exercised an important jurisdic- 
 tion, including the right to review, within a year, judgments 
 of 'he local com in issa ries. The Edinburgh commissariat 
 
 comprised tour judges, who claimed to have, and in point 
 dt fact did exercisS, concurrent jurisdiction with the local
 
 CON SI STOMAL. 31 
 
 Commissary Courts all over Scotland, as well as e\<T; 
 jurisdiction within their own territory. In some matt 
 instance, as regards consistorial questions relating to man 
 and divorce, and as regards executry matters in the case of 
 deceased persons who had no fixed local domicile within 
 Scotland, or who had died abroad leaving estate in Scotland, 
 the Edinburgh jurisdiction excluded that of all the local 
 commissaries, as well as that of the civil Courts. 
 Ersk. I. 5, 29. 
 
 7G. Iu 1823 the commissary ceased to be an independent 
 judge, and the jurisdiction of the local commissaries was 
 transferred to the Sheriff, each existing sheriffdom being con- 
 stituted a separate commissariat. The Edinburgh commis- 
 sariat still maintained its special privileges as regards the 
 estates of persons dying furth of Scotland, and leaving estate 
 within Scotland, but otherwise the Edinburgh commissariat 
 authority was restricted to its own sheriffdom, and ceased to 
 have any appellate jurisdiction, which was then vested in the 
 Court of Session. 
 
 1 Will. IV. c. 69. 4 Geo. IV. c. 97. 
 
 6 & 7 Will. IV. c. 41. 
 
 77. The administrative executry work of Scotland was 
 thenceforth continued by the Sheriff, who was the commissary 
 judge of his sheriffdom, and down to 1876 the commissary 
 work was a separate department of judicial procedure, with 
 a commissary clerk in each sheriffdom as an independent 
 official. The Sheriff Courts Act of 187G merged the office oJ 
 commissary clerk in that of Sheriff-clerk, just as the office oi 
 commissary had been merged in that of the Sheriff. The Com- 
 missary Court, as a separate tribunal, was then abolished, ami 
 the Sheriff Court was declared thenceforth to possess and 
 exercise the Avhole of the Commissary Court's power- and 
 jurisdiction. 
 
 39 & 40 Vict. c. 70, s. 35-45. 
 
 78. The Commissary Court, however, had. long before that. 
 been shorn of its proper consistorial jurisdiction, and had 
 come practically to be restricted to what we now know as 
 commissary practice proper, relating to executry matters. The
 
 32 JURISDICTION. 
 
 Sheriff Courts Act of L853 repeated an old provision that 
 procedure in consistorial causes Bhould be the same as that iu 
 ordinary actions, but this was rather meaningless, for, when 
 the commissary jurisdiction was transferred to the Sheriff in 
 L823, consistorial actions had been specially excepted. 
 
 1 Will. IV. c. 69. 4 Geo. IV. c. 97. 
 
 6 & 7 Will. IV. c. 41. 13 & 14 Vict. c. 36, 16. 
 
 79. Apart Erom Btatute, neither the Sheriff nor the Court 
 of Session ever had jurisdiction as a Court of first instance in 
 consistorial causes, but the statute of 1830 conferred upon the 
 Court of Session privative jurisdiction in " actions of declarator 
 "of marriage and of nullity of marriage, and all actions of 
 " declarator of Legitimacy and bastardy, and all actions of 
 "divorce, and all actions of separation a me?isa ct thoro." 
 
 11 Geo. IV. and 1 Will. IV. c. 69, 33. 
 
 80. Prom this excepted list the Sheriff Courts Acts have 
 withdrawn actions of separation and aliment, and adherence 
 and aliment, in which the jurisdiction of the Court of Session 
 has ceased to be privative, and become concurrent with that 
 of the Sheriff Court, with power to the Sheriff, either on cause 
 shown or ex proprio modi, to remit such cause to the Court 
 of Session. The Court of Session, however, does not counten- 
 ance the Sheriff exercising his power to remit, unless there is 
 some special delicacy or difficulty in the case which makes a 
 irinit desirable. The Sheriff cannot on general grounds refuse 
 to exercise his statutory jurisdiction to entertain such actions. 
 But (except as altered by the Sheriff Courts Acts, 1907-1913) 
 section 33 of the L830 Art has not been repealed; so that the 
 jurisdiction of the Court of Session is still privative as regards 
 the i't her actions above mentioned. 
 
 Appendix, b. 5, Proviso 2. Samuel r. Samuel, 1909, 25 
 
 11 <:.•-,. IV. and 1 Will. IV. c. S.C.R. 99. 
 
 69, s. 33. Dunbar v. Dunbar (1911). 1912, 
 
 7 Ed. VII. c. 51, s. 5 (1), (2). S.C. 19. 
 
 2 &3 Geo. V. c. 28. 
 
 81. One Eorm of action which has generally (although 
 possibly erroneously during the last forty-sis years) been 
 regarded as included amongst the consistorial actions com- 
 petent only in the Court of Session, which the statutes, includ- 
 ing the Sheriff Courts Act, 1907, left in a somewhat indefinite
 
 CONSISTORIAL. 
 
 position, was the action of adherence. Although still existing 
 in name, an action of adherence simpliciter had for a long 
 time been obsolete in practice, and such an action in the 
 present day would be futile, for the obvious reason that there 
 is not now any legal diligence for enforcing a mere decree of 
 adherence, unless it could be regarded as a judgment enforce- 
 able as a decree ad factum pra , sta?idu7n, and present-day 
 practice would not so regard it. A conclusion for adherence 
 is now only used in conjunction with a conclusion for alimeut. 
 
 82. Originally a separate action of adherence was a neces- 
 sary pi elude to an action for divorce, and questions between 
 non-adhering spouses naturally fell within the jurisdiction of 
 the commissaries, as being consistorial questions appropriate 
 to ecclesiastical jurisdiction. The action of adherence, 
 however, was not included in the list of actions transferred 
 from the commissaries to the Court of Session by section 33 of 
 the 1830 Act, and eighteen years later a full bench of judges 
 in the Court of Session unanimously, although reluctantly, 
 decided that, not only had the Court of Session not privative 
 jurisdiction in an action of adherence, but that they had not 
 jurisdiction at all, and that the action should have been 
 brought before the Sheriff, as coming in place of the commis- 
 sary. Twenty years later it was enacted by statute that 
 actions of adherence, and all other consistorial actions, 
 although not specially mentioned in the Act of 1830, were 
 included in the privative jurisdiction of the Court of Session. 
 
 11 Geo. IV. and 1 Will. IV. c. 13 & 14 Vict. c. 36, s. 16. 
 
 69, s. 33. A v. B, 1848, 11 D. 101. 
 
 83. The interpretation clause of the Conjugal Rights 
 Amendment Act of 1861 declares that " the expression ' con- 
 " ' sistorial action ' shall include actions of declarator of 
 " marriage, of declarator of nullity of marriage, of declarator 
 " of legitimacy and bastardy, actions of separation a mensa et 
 " thoro, of divorce and of adherence and of putting to silence 
 " and actions of aliment between husband and wife instituted 
 "in the Court of Session." 
 
 24 & 25 Vict. c. 80. s. 19. 
 
 84. It was that same statute, however, which reduced the 
 action of adherence simpliciter to a mere name, for it enacted 
 
 3
 
 ;l JURISDICTION. 
 
 also that "it shall not be necessary prior to any action for 
 "divorce to institute againsl the defender any action of 
 "adherence, nor to charge the defender to adhere to the 
 "pursuer, nor to denounce the defender, nor to apply to the 
 •■ Presbytery of the hounds, or any other judicature, to 
 •• admonish ihe defender to adhere." 
 
 24 & 25 Vict. c. 80, s. 11. 
 
 85. Under the 1861 clause above quoted, an action of 
 adherence was declared in he a consistorial action, it will be 
 observed, only if it was instituted in the Court of Session. 
 An action for aliment has always been competent in the 
 Sheriff Court, if no question of status was involved. 
 
 Appendix, s. 5 (2), Rule 23. M'Donald v. M'Donald, 1875, 2 
 
 24 & 25 Vict. c. 80, s. 19. R. 705. 
 
 7 Ed. VII. c. 51, s. 5 (2). Hay v. Hay, 1882. 9 R. 667. 
 
 Hood v. Hood, 1871, 9 M. 449. Young v. Young's Trs., 1906, 14 
 
 S.L.T. 123. 
 
 86. The Sheriff Courts Act, 1907, did not in express terms 
 make mention of adherence, but it made competent in the 
 Sheriff Court all actions of aliment, a provision which seems 
 sufficiently broad to include actions of adherence and alimenl : 
 and, seeing thai this enactment was found in the same section 
 with actions of separation and aliment and for regulating the 
 custody of children, it is thought that ihe plain intention of 
 the Legislature, in the enactment of 1907. was to dispel the 
 doubt created by the statutes of 1830, 1850, and 1861, and to 
 assert that the Sheriff Court had jurisdiction to entertain the 
 action, nominally designed an action of adherence and aliment, 
 but which is only an operative ait ion quoad the aliment 
 conclusion. Doubtless the particular enactments referred to 
 in the Acls of 1850 and L861 were not found in the repeal 
 schedule attached to the Sheriff Courts Act of 1907, but that 
 Act repeals not only the specific statutes in the schedule, but 
 also "all laws, statutes, Acts of Sederunt, orders, and usages 
 "now in force so Bar as the same are inconsistent with the 
 "provisions of this Act." It would have heen inconsistent 
 with the provisions of that L907 Act, and would practically 
 have defeated the enactment of section 5 (2), to regard as still 
 operative the provision of the Act of 1850, and so, if the 
 
 conclusion for adherence had not, as it probably had, become 
 meaningless, it had at all events become a merely nominal
 
 CONSISTORIAL. 3d 
 
 conclusion in an action, the leading- and only operative craving 
 in which was for aliment. 
 
 Appendix, s. 5 (2). 13 & 14 Vict. c. 36. 
 
 11 Geo. IV. and 1 Will. IV. 24 & 25 Vict. c. 80. 
 
 c. 32. 7 Ed. VII. c. 51. s. 5 (2), 52. 
 
 87. It is thought, therefore, that the action oJ adherence 
 aixl aliment fell within the extension of jurisdiction conferred 
 bv the Sheriff Courts Act, 1907; but doubt was entertained 
 about it. That matter has been set at rest by the Sheriff 
 Courts Amendment Act, 1913, which has re-cast section 
 
 of the 1907 Act, and has expressly included, not only actions 
 of separation and aliment, but also actions of adherence and 
 aliment. 
 
 Appendix, s. 5 (2), Rule 23. 2 & 3 Geo. V. c. 28, Schedule I. 
 
 88. In an action of adherence and aliment a pursuer does 
 not get an unqualified decree. It is always open to the 
 defender to offer to adhere, and accordingly a decree for a 
 termly payment of aliment is expressed to run only whilst 
 the spouses are living apart. A decree even in absence is 
 not granted till after inquiry, in any of the actions in the 
 consistorial class. 
 
 Appendix, Rule 23. 
 
 89. The "consistorial actions" proper, therefore, which 
 appear to be still incompetent in the Sheriff Court, are (a) 
 declarator of marriage, (b) declarator of nullity of marriage, 
 (c) declarator of legitimacy, (d) declarator of bastardy, (e) 
 divorce, (/) declarator of putting to silence (which is not of 
 frequent occurrence), and (g) divorce actions. What action-. 
 other than these, may fall within the exception in the Sheriff 
 Courts Act, 1907, "actions the direct or main object of which 
 " is to determine the personal status of individuals," is not 
 clearly defined in the statute itself. It is to be observed. 
 however, that the restricton seems to apply only to questions 
 of personal status, an action to determine the official status oi 
 an individual being apparently competent. As the 1 i — t oi 
 consistorial causes enumerated in the Court of Session Act oi 
 1830, as broadened by the Conjugal Rights Act of 1861, 
 seems to practically exhaust the class of possible personal 
 status questions, the practical effect of the statutes oi 1907-1913 
 would appear to be to extend the jurisdiction of the Sheriff
 
 JURISDICTION. 
 
 Court to every variety of action of declarator, except (a) the 
 storia] actions before mentioned, which are still privative 
 in the Court of Session under statute; and (b) actions in which 
 a declaratory conclusion is combined with a reduction con- 
 clusion. 
 
 90. It is to be observed that, to bring a case within the 
 status exception of clause 5 (2) of the Sheriff Courts Act, 1907, 
 the direct or main object of an action must be to determine 
 status. The decision of a question of status may incidentally 
 be necessary, and if the status question is merely ancillary to 
 some other question which is the direct or main object of the 
 action, then the Sheriff Court may, for the purposes of that 
 action, entertain and decide the status question. Thus, the 
 claim of an illegitimate child, as a dependant of a party who 
 is killed, and who is alleged to have been the father of the 
 child, may he dealt with in the Sheriff Court, under the 
 Workmen's Compensation Act, although the paternity of the 
 child has aever been judicially established and is not admitted ; 
 and under the Workmen's Compensation process the Sheriff 
 may decide the question of the paternity. But where a 
 question of status is thus incidentally determined for the 
 purposes of the particular case in which it is an incidental 
 question, the finding- of the Court cannot be pled as res 
 judicata in a subsequent action where the same status question 
 is raised as a direct issue. 
 
 Hamilton's Trustees v. Wi Johnston v. Spencer, 1908, S.C. 
 
 & Sharp, L880, 7 R. 460. 1015. 
 
 M'Donald r. Mackenzie, 1891, 18 Wallace v. Fife Coal Co., 1909, 
 
 R. 502. S.C. 682. 
 
 91. An action was not necessarily consistorial, or excluded 
 from the jurisdiction of the Sheriff Court, merely because it 
 related to the domestic relations. Aliment claims, for instance, 
 between parents and children, where the parentage was not 
 in dispute have always been regarded simply as debt claims 
 enforceable in the Sheriff Court. Even between spouses, the 
 
 Sheriff Court has 1 d accustomed to a limited effect to exercise 
 
 jurisdiction, although probably rather upon grounds of con- 
 venience, than of strict legal principle. Thus a wife's claim 
 for temporary aliment, pending the settlement of marital 
 disputes in the Court of Session, has long been recognised as a 
 "debt" (in the sense of the Small Debt Act) due by the
 
 CONSISTORIAL. 37 
 
 husband to the wife. This doctrine, once it had been recog- 
 nised by the Court of Session, received a broad interpretation 
 at the hands of wives deserted bv their husbands, and. owing 
 to the great convenience and expedition of Small Debt Court 
 procedure, was allowed great latitude in most Sheriff Courts. 
 When actions of separation and aliment became competent in 
 the Sheriff Court, it became doubtful whether an action for 
 interim aliment was any longer competent, seeing that an 
 award of interim aliment could be got in the separation 
 process, but that formal action took time, and in most Courts 
 actions were still entertained in the Small Debt Court for 
 interim aliment. The statute of 1913 has set all doubt at rest 
 by expressly including claims for interim aliment amongst 
 the competent actions in the Sheriff Court. 
 
 Appendix, s. 52. Docherty v. Doeherty, 1908. 24 
 
 2 & 3 Geo. V. c. 28, Sen. I. S.C.R. 120. 
 
 Smith v. Smith, 1874, 1 R. 1010. Whillana v. Whillans, 1908. 24 
 
 M'Donald v. M'Donald, 1875, 2 S.C.R. 122. 
 R. 705. 
 
 92. Certain actions regarding the custody of children were 
 always competent in the Sheriff Court, when no question of 
 status was involved, and the competition was for the mere 
 custody of the child. In such an action a crave is competent 
 for warrant to search for and recover the person of a child. 
 The mother of an illegitimate child, for instance, might sue 
 to obtain custody of her child. The Sheriff might also regulate 
 interim custody of children pending the settlement of status 
 questions in the Court of Session. The Sheriff also had 
 statutory power to make orders under the Guardianship of 
 Infants Act of 1SS6 and the Custody of Children Act of 1891. 
 
 49 & 50 Vict. c. 27. Gillan r. Barony Parish, 1898, 
 
 54 & 55 Vict. c. 3. 1 F. 183. 
 
 Hammel & Brand v. Shaws, Guthrie v. Guthrie, 1906, 8 F. 
 
 ], 15 R. 449. 545. 
 
 Keiller v. Mackenzie, 1892. 19 
 R. 963. 
 
 93. Under the Sheriff Courts Acts, 1907-1913, actions 
 relating to the custody of children may be remitted to the 
 Court of Session. The enactments are so baldly expressed that 
 the Sheriff appears to have power to entertain initially any 
 question regarding the custody of a child, whether temporarily 
 or permanently. But an action regarding the permanent 
 custody of a child very often involves a question of status as
 
 JURISDICTION. 
 
 a main issue, and it may in general be better at once to apply to 
 the Court of Session, for, it the action is raised in the Sheriff 
 Court, either party may move to have it remitted to the Court 
 nf Session, and if upon the pleadings a question of status 
 emerges, the Sheriff would seem bound to exercise Ins power 
 to remit. 
 
 Appendix, s. 5 (2). Proviso 2. 2& 3 Geo. V. c. 28, Sch. I. 
 
 7 Ed. Vll. c. 51, s. 5 (2). Pro 
 i 3. 
 
 4. Recissory. 
 
 94. A.ctions of reduction, other than those relating to 
 heritable title, are not expressly included amongsl the excep- 
 tions in the jurisdiction clauses of the Sheriff Courts Act, 1907. 
 Nor is a reduction directly and expressly excluded from 
 the Sheriff Court jurisdiction, as it was in the Sheriff Courts 
 Act, 1877; but, although the Act of 1877 containing' that 
 exclusion has been repealed by that of 1907, and no reference 
 has been made in the later Act to actions of reduction other 
 than heritable actions, it is not to be interred that actions of 
 reduction have been made competent in the Sheriff Court, for 
 Buch actions were not previously competent in the Sheriff 
 Court, and a new and important jurisdiction of this sort is 
 not to be presumed to h;ive been conferred by implication. 
 The exclusion expressed in the 1S7T Act was not a new 
 statutory restriction of the Sheriff Court's jurisdiction, but 
 was merely a statutory expression of what was then, and had 
 long been, the existing law. By long-established practice 
 this class of action bad been confined to the Court of Session. 
 
 Appendix, s. 5 (1). 7 Ed. VII. c. 51. s. 5 (1) (4). 
 
 40 & 41 Vict. c. 50. s. 8 (1). 2 & 3 Geo. V. c. 28. Sch. 1. 
 
 95. A reduction is not. strictly speaking, a declarator, nor 
 
 a petitory action, nor a possessory action. It forms a class by 
 itself, and i> termed a rescissory action. Although it is not 
 competent in the Sheriff Court as a direct action, it may 
 happen, and does frequently happen, indirectly, that deeds 
 md writings which are founded on by either party in a Sheriff 
 Court process may, iii practical effect, be reduced in the Sheriff 
 Court, tor there i>- no difference in result between formally 
 reducing a deed in a substantative action, and challenging it 
 ope exceptionis, and the Sheriff Courts Act, 1907, enacts that
 
 RECISSORY. 
 
 " when a deed or writing is founded on by any party in a 
 "cause, all objections thereto may be stated and maintained 
 "by way of exception without the necessity of bringing a 
 "reduction thereof." But, where reduction would have hen 
 competent, the Sheriff has power to require caution, or order 
 consignation. 
 
 Appendix, Rule 50. Scott v. Cook, 1886, 14 R. 1043. 
 
 7 Ed. VII. c. 51, Sch. I., Rules Mackie v. Strachan, 1896. 23 R. 
 
 50, 51. 1030. 
 
 2 & 3 Geo. V. c. 28, Sch. I!. Roberts v. Fettes, 1902. 18 
 
 Brown's Trs. v. Frazer, 1870, S.C.R. 290. 
 
 8 M. 820. Duke of Argyll v. Muir (1909), 
 
 Nivison v. Howat, 1883. 11 R. 1910, S.C. 96. 
 
 182. 
 
 96. What is covered by the wide expression, a deed or 
 writing- founded on, is a matter which must be determined in 
 each particular case. The mere fact that a document is 
 founded on does not necessarily infer that it may be challenged 
 ope exceptione, to the effect of reducing it as a deed. The 
 writing founded on may be such a thing as a decree of 
 Court, or an arbiter's award, or a will, or other document, 
 which can only be set aside by a formal action of reduction, 
 which is not competent in the Sheriff Court. In an action of 
 furthcoming, for instance, a decree of Court is always the 
 writing founded on by the pursuer. But that decree cannot 
 be set aside under this rule, for a decree of Court can only be 
 set aside in a formal action of reduction. Where the judgment 
 of the Sheriff upon the validity of a document cannot be res 
 judicata, or w r here the interests of parties not in the cause 
 might be affected by the judgment, the rule does not apply. 
 Jurisdiction which did not previously exist is never conferred 
 upon a Court by implication; and this rule, which is only a 
 procedure rule, cannot be read to make an action of reduction 
 competent in the Sheriff Court, which, but for this rule, would 
 not be competent. 
 
 Appendix, Rule 50. Leggat Bros. v. Gray (1911), 
 
 7 Ed. VII. c. 51, Sch. I., Rule 1912, S.C. 230. 
 
 50. Donald v. Donald (1912), 1913. 
 
 S.C. 274. 
 
 97. If an action with mixed conclusions is brought in the 
 Sheriff Court, it need not necessarily be dismissed because 
 these include a reductive conclusion. If a writ is so framed 
 that the separate conclusions are distinct, the action may be
 
 in JURISDICTION. 
 
 entertained quoad such conclusions as are competent in the 
 Sheriff Court, and relevantly stated, although it may be dis- 
 ,] quoad other conclusions, which are not competent in 
 the Sheriff Court. 
 
 Cook v. Sinclair, 1896, 23 R. 925. 
 
 98. To the general rule that reduction is competent only in 
 the Court of Session there are some statutory exceptions. A 
 workman's contract of service, for instance, can be set aside, 
 and a contract of apprenticeship can be rescinded, under the 
 summary jurisdiction to that effect conferred upon the Sheriff 
 by the Employers and Workmen Act of 1875. Under the 
 bankruptcy statutes, also, certain deeds ate voidable without 
 the necessity of an action of reduction. If, however, a bank- 
 ruptcy trustee finds it necessary to bring a formal action to 
 reduce a deed, he may still have to resort to the Court of 
 Session, for the provisions of the bankruptcy statutes do not 
 go the length of transferring jurisdiction in such actions to the 
 Sheriff Court, but only the length of empowering the trustee 
 to challenge ex facie valid deeds. 
 
 38 & 39 Vict. c. 90. Murray v. Dickson, 1866, 4 M. 
 
 40 & 41 Vict. c. 50, s. 11. 797. 
 
 Ersk. IV. 1, 18. M'Laren's Trs. r. Nat. Bank, 
 
 1897, 24 R. 920. 
 
 5. Exchequer. 
 
 99. Exchequer causes proper are not competent in the 
 Sheriff Court, although the Sheriff, as the executive officer of 
 the Exchequer, is still charged with the duty of enforcing 
 Exchequer decrees within his sheriffdom. Formerly there 
 was a separate Court of Exchequer in Scotland, which had 
 administrative as well as judicial functions. The adminis- 
 trative duties have long been transferred to Treasury State 
 Departments. The Courl of Exchequer in 1856 ceased to 
 exist as an independenf Court, and its powers were transferred 
 to the Court of Session, where a Lord Ordinary, subject to 
 review as in oilier causes, deals with all questions directly 
 affecting Crown revenues and charges, except as regards the 
 amount of duty properly chargeable upon a deed, which under 
 the Stamp Act of L89] is submitted direct to the Inner House 
 by way of stain] case. Indirectly, however. Exchequer ques- 
 tions may be decided in the Sheriff Court, the most common
 
 EXCHEQUER n 
 
 case being thai where the Crown is a creditor in competition 
 with other creditors in a bankruptcy or other process. When 
 sucli a case arises in the course of a process not directly 
 initiated as an Exchequer claim, it is the prerogative of the 
 Crown to require the question to be determined by the Lord 
 Ordinary in Exchequer, but, if this is not insisted in, a 
 question so arising in the Sheriff Court may competently be 
 there determined. A limited jurisdiction in Exchequer was 
 conferred upon the Sheriff Court under the Finance Act, 1804, 
 which makes it competent to appeal to the Sheriff against a 
 charge for estate duty when the value of the estate does not 
 exceed £10,000. 
 
 6 Anne c. 26. 
 
 
 
 L. Adv. 
 
 v. Hogarth, 1859, 21 D 
 
 3 & 4 Will. IV. c. 13. 
 
 
 
 213. 
 
 
 19 & 20 Vict. c. 56. 
 
 
 
 Sharpe 
 
 r. Millar, 1861, 23 D 
 
 57 & 58 Vict. c. 30, s. 10. 
 
 
 
 1015. 
 
 
 59 & 60 Vict. c. 28, s. 22, 
 
 
 
 L. Adv. 
 
 v. Fleming, 1864, 2 M 
 
 Act of Sederunt, 17th July. 
 
 1895. 
 
 1032. 
 
 
 L. Adv. v. Beattie, 1856", 
 
 18 
 
 D. 
 
 
 
 378. 
 
 
 
 
 
 6. Ecclesiastical. 
 
 100. The Sheriff has no jurisdiction, even incidentally, in 
 teind questions proper, with the single exception of proceedings 
 for commutation and sale of fish teinds, which, under a statute 
 of 1864, are competent in the Sheriff Court. Such matters as 
 augmentation of ministers' stipends, the erection or disjunc- 
 tion of parishes, and the like, were originally dealt with by 
 the Commissioners of Teinds, but that office Mas abolished 
 in 1T0T, and the whole judges of the Court of Session were 
 constituted a Teind Court, upon whom the functions of the 
 Commissioners were devolved. The Teind Court is still in 
 effect a separate Court, and its duties are discharged by one of 
 the Lords Ordinary as Lord Ordinary on Teinds, along with 
 the Inner House judges. 
 
 6 Anne c. 9. 27 & 28 Vict, c. 33. 
 
 2 & 3 Vict. c. 36, s. 8. 30 & 31 Vict. c. 100, 9. 9. 
 
 101. The Sheriff Court, however, has jurisdiction to deter- 
 mine questions as to the repair or rebuilding of churches and 
 manses, the allocation of seats in a parish church, ami ques- 
 tions in regard to alterations on, or maintenance of, glebes and 
 churchyards. This is an appellate jurisdiction, under the 
 Ecclesiastical Buildings and Glebes Act. 1868. The initial
 
 [2 II IMSDKI ION. 
 
 proceedings are taken before tin' Presbytery, but. within 
 twenty days of tin- date of any order or deliverance of the 
 Presbytery, the parish minister, or any heritor, may bring 
 a Bummary application, craving the Sheriff to stay proceeding-; 
 before the Presbytery and dispose of the matter in the Sheriff 
 Court. If such an application is not timeously made, a Hresby- 
 terial deliverance is final, unless the Presbytery proceedings 
 have been grossly irregular. Intimation of such an application 
 to the Sheriff has the effect of an appeal. Proceedings before 
 the Presbytery arc stayed, and the Presbytery clerk transmits 
 the process to the Sheriff-clerk. The cause is then disposed 
 of in the Sheriff Court, in a summary manner, the judgment 
 of the Sheriff being final, unless appealed against within 
 twenty days to the Lord Ordinary on Teinds. As the effect 
 ii I an appeal to the Sheriff:' is to transfer the whole cause to 
 him, and invest him with the whole powers the Presbytery 
 could have exercised, so in like manner appeal to the Lord 
 Ordinary on Teinds transfers the Avhole cause to him, and his 
 dei ision is final. 
 
 31 k 32 Vict. c. 96. Pitsligo Heritors. 1879, 6 R. 
 
 Walker v. Arbroath PresBvterv, 1063. 
 
 1876, 3 R. 498. 
 
 L02. The Court to which such an ecclesiastical cause may be 
 thus removed is the Court of the sheriffdom, or district of a 
 sheriffdom, within which the parish is situated. If the parish 
 is in more than one sheriffdom or district, the jurisdiction 
 belone- fco an y Sheriff Court within which the parish partly 
 lies. An appeal to the Sheriff, once it has been taken, may be 
 insisted in by any heritor, or by the heritors 3 clerk, or the 
 Presbytery clerk, or by the minister. The case may be 
 disposed oJ either by the Sheriff or the Sheriff-Substitute. If 
 by the latter, there is no appeal from him to the Sheriff. 
 
 31 & 32 Vict. c. 96, 4. 2. 
 
 10-'!. An application to stay proceedings before a Presbytery, 
 being " a civil proceeding competent in the ordinary Sheriff 
 " Court," is an " act ion *" within the meaning of sect ion 3 d of 
 the Sheriff Courts Act. L907. It will therefore be commenced 
 by initial «nt in the form A of the Schedule of the Sheriff 
 Courts Act, L913. Hut as it is an application brought under 
 an Act of Parliament which does "particularly define in what
 
 ECCLESIASTICAL. i:; 
 
 "form the same shall be heard, tried, and determined," il is 
 not a "summary application" within the meaning of BectioD 
 3 (p) of the Sheriff Courts Act, 1907. The procedure to be 
 followed is that prescribed by the Ecclesiastical Buildings Act, 
 1868, that Act uot being- repealed by the Sheriff Courts Act, 
 1907, and uot inconsistent with it. 
 
 Appendix, s. 3 (d) (p). 7 Ed. VII. c. 51, s. 3 [d), 3 (/>). 
 
 31 & 32 Vict. c. 96. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7. Heritable. 
 
 104. The Sheriff Courts Act, 1907, has materially altered 
 the law iu regard to civil process relating- to heritage, and 
 restored to the Sheriff Court its original jurisdiction, con- 
 current with that of the Court of Session. Formerly, when- 
 ever it became necessary to obtain a judicial declaration of 
 the existence or non-existence of a heritable right, however 
 unimportant, or of however trifling money value, resort to the 
 Court of Session was necessary. The anomalous situation, 
 however, was that, although the Sheriff Court was not deemed 
 competent to declare a heritable right of any kind, however 
 trifling, yet possessory questions relating to heritage, which 
 were often questions of vastly greater practical importance 
 than mere declaratory questions — as, for instance, a right to 
 fish or an obligation to remove buildings — could competently 
 be entertained in the Sheriff Court. 
 
 Ersk. II. 6, 23, 28. .Maxwell v. G. & S.W. Railway 
 
 Johnston v. Jardine, Gibson- Co., 1866. 4 M. 447. 
 
 Craig, and others, 1862, 34 Sutherland v. Thomson, 1876, 3 
 
 Jur. 350. R. 485. 
 
 105. The determining of many so-called possessory actions 
 necessarily involved the consideration, to a greater or less 
 extent, of questions of heritable right and title. Nevertheless, 
 such actions were competent in the Sheriff Court ; but, whatever 
 it might be in substance, a Sheriff Court judgment relating to 
 heritable title could not competently be in form declaratory, 
 and many interesting casuistical judgments are in the books 
 upon the question of possible exceptions to the exclusive 
 jurisdiction of the Court of Session in actions relating to 
 heritable right. All these the Sheriff Courts Act. 1907, 
 relegated to the realm of ancient history, by broadly enacting 
 that, with two exceptions, the Sheriff Court jurisdiction now
 
 44 JURISDICTION. 
 
 covers every description of action relating to heritable right 
 and title. A possessory action alone may still be necessary 
 in the Sheriff Court, in occasional cases where the heritable 
 title is the subject of an action of reduction in the Court of 
 Session. 
 
 Appendix, s 5 (4). Allan r. Alexander's Trs. , 1908, 
 
 7 Ed. VII. c. 51, s. 5 (1), (4). 16 S.L.T. 491. 
 
 106. The first exception is the "action of adjudication save 
 "in so far as now competent." When the jurisdiction of the 
 Sheriff Court was (subject to value limits) extended in 1877 
 to include actions of declarator, an exception was made in the 
 identical words which have been adopted in the 1907 Act. It 
 is though! that its being thus twice treated by way of statutory 
 exception has attached to the action of adjudication a fictitious 
 importance, not warranted by the position of that action in 
 present-day process law. 
 
 Appendix, s. 5 (4). 7 Ed. VII. c. 51, s. 5 (4). 
 
 40 & 41 Vict. c. 50, s. 8. 
 
 107. Adjudication is a diligence in the form of an action, 
 rather than, strictly speaking, an action. It is of two kinds — 
 (a) adjudication in implement, which is still competent only 
 in the Court of Session, and which has for its object the 
 effectual vesting of heritable property in a party who has 
 acquired it upon a title faulty in some respects; (b) adjudica- 
 tion for debt, which has for its object the transt'eience of a 
 debtor's heritable property to a creditor, subject to redemption. 
 This, to a limited extent, is competent in the Sheriff Court. 
 Originally all adjudications were competent in the Sheriff 
 Court, but in 1672 the jurisdiction of the Sheriff was excluded, 
 excepl as regards adjudication contra hcereditatem jacentem, by 
 which a creditor mighl attach heritage vested in a deceased 
 debtor, to which the heir in heritage had renounced succession. 
 The process was very seldom resorted to at any time, and has 
 practically become obsolete in the Sheriff Court, the necessity 
 for it having disappeared when other means of attaching the 
 heritage of debtors for behoof of their creditors were made 
 available. The Bankruptcy Act of ltSOU gives the trustee's 
 act and warranl the force and effect of a decree of adjudication, 
 and transfers to him a bankrupt's heritable, as well as move- 
 able, estate. It also g-ives the trustee ample powers to make 
 up titles, if necessary, by judicial authority. The Bankruptcy
 
 HEIJITAIJLK. 45 
 
 Acts also apply to the estates of deceased debtors. The Sheriff 
 Courts Act, 1907, extended the jurisdiction of the Sheriff 
 Court to practically nil questions relating to heritage, and the 
 Heritable Securities (Scotland) Act of 1894 enabled a heritable 
 creditor to take over his defaulting debtor's property. These 
 and other alterations in the old law render it unnecessary now 
 to resort to the old and cumbrous form of action of 
 adjudication, and although it remains a process in name, it 
 is practically obsolete in the modern Sheriff Court. 
 
 Appendix, s. 5 (4), 6 (d). 7 Ed. VII. c. 51, s. 5 (4), 6 (d). 
 
 Act 1672, c. 19. Ersk. II. 12, 52. 
 
 19 & 20 Vict. c. 79, s. 102-105. 
 
 108. The other exception, the direct action of reduction, 
 has been already adverted to. Such an action, if it relates to 
 heritable property, is definitely declared to be excepted from 
 the Sheriff's jurisdiction, but, as we have seen,, an action of 
 reduction of any sort is still incompetent in the Sheriff Court. 
 
 Appendix, s. 5 (4). 
 
 109. The effect of the Sheriff Court legislation, therefore, 
 is that, excepting as regards adjudication (other than adjudica- 
 tion contra hcereditatem jacentem) and reduction, the jurisdiction 
 of the Sheriff Court has now again become concurrent with 
 that of the Court of Session in all questions relating to herit- 
 able right and title, whether these questions are declaratory or 
 possessory. It is not, therefore, here necessary to examine 
 in detail the various phases of relaxation of the original 
 exclusive jurisdiction of the Court of Session, as revealed in 
 the numerous cases, illustrating the ingenious attempts made 
 to evade the exclusion of heritable actions from the Sheriff 
 Court, for these have now only a historical interest. 
 
 Appendix, s. 5 (4). 7 Ed. VII. c. 51, s. 5 (4). 
 
 110. This broadened jurisdiction of the Sheriff Court in 
 heritable actions is, however, subject, within value limits, to 
 a power of advocation to the Court of Session. Freeing an 
 action relating to heritage from hampering restrictions lias 
 been a gradual process. When jurisdiction in heritable 
 questions was conferred upon the Sheriff Court in 1877 it 
 was limited by value. When the heritable subjects exceeded 
 in value £1000, or £50 yearly, action had still to be taken 
 in the Court of Session. The Sheriff Courts Act, 1907,
 
 i>; JURISDICTION. 
 
 abrogated the value condition, and substituted Eor it a power 
 to remit. Any action relating to heritage, whatever its 
 nature or value, may now be competently raised in the Sheriff 
 Court : 1 >u t if the value exceeded the L877 Limits, either party 
 had the right, within six days of the closing of the record, 
 " to require the cause to he remitted to the Court of Session." 
 Removal to the Court of Session is, however, competent only 
 if the cause really raises a heritable question. If it only 
 raises a money question, although it concerns heritage, removal 
 is not competent. 
 
 Appendix, s. 5 (4), Proviso 2. Muirhead v. Oilmour, 1909, 1 
 
 40 & 41 Vict. c. 50, s. 8. S.L.T. 235. 
 
 7 Ed. VII. c. 51, s. 5, Proviso 2. Anderson v. M'Gown, 1911, 
 
 Pitman v. Burnett's Trustees, S.C. 441. 
 1882. 9 R, 444. 
 
 111. The extension of this jurisdiction to the Sheriff Court 
 does not make it privative, and it does not affect the 
 exercise by any other Court of jurisdiction which belongs to 
 it. Jurisdiction is not granted or removed by implication, 
 and, accordingly, the recent Sheriff Court legislation does not 
 in any way affect either the ancient or the modern powers 
 exercised in burghs by such a tribunal as the Dean of Guild 
 Court. In that Court a class of question is entertained in 
 regard to which neither the Court of Session nor the Sheriff 
 Court lias ever been a competent Court of first instance. The 
 function of the dean of guild is to see that, in connection 
 with the erection or alteration of buildings in burghs, private 
 property is not encroached upon, and the public interest is 
 protected, and where special regulations exist, as they do in 
 many burghs, that these regulations are complied with. The 
 dean of guild, speaking broadly, has alone jurisdiction in 
 questions relating to the Legal title to build or to the mode 
 of erection, hut he doe- not exclude the civil Courts in questions 
 relating to the use made of the property. Within the scope 
 of the dean of guild's jurisdiction, he is the sole judge of first 
 instance, with appeal direct from him to the Court of Session. 
 But operations made upon property oi' the use made of it. 
 whilst not in themselves, from the public point of view, 
 illegal, may yet be prejudicial to parlies having, by contract 
 or interest, a title to challenge such operations or use. 
 Questions thus arising are not competent in the Dean of Guild 
 Court, hut aie now competent in the Sheriff Court. Nor 
 does the recent legislation detract from any judicial powers
 
 HERITABLE. f7 
 
 possessed and in use to be exercised by any other authority 
 within the sheriffdom. Some royal burghs, for instance, by 
 their ancient charters, had conferred upon them certain 
 privileges entitling them in particular matters to exerci 
 judicial or quasi- judicial authority. That the jurisdiction oj 
 the Sheriff, as now extended, may cover matters in which a 
 biiro-h Court also exercises "jurisdiction, does qoI infer that 
 the jurisdiction has been withdrawn from the burgh Courl 
 and transferred to the Sheriff. It merely gives the party 
 resorting to legal process an option to choose his Court. 
 
 Appendix, s. 5 (4). Ersk. I. 4, 24. 
 
 7 Ed. VII. c. 51, s. 5 (4). 
 
 112. The statutory broadening of the jurisdiction of the 
 Sheriff Court does not, of course, have the effect of altering 
 the jurisdiction of the Supreme Court. Thus, although the 
 jurisdiction of the Sheriff Court has in some matters (formerly 
 excluded from the Sheriff Court) relating to heritable right 
 and title now become concurrent with that of the Court of 
 Session, it does not follow that the jurisdiction of the Court 
 of Session has in other matters (not formerly included in the 
 Court of Session) become concurrent with that of the Sheriff 
 Court. The Sheriff Court, for instance, has always been in 
 practice regarded as the competent Court of first instance in 
 actions of sequestration for rent, and in removings. This 
 is in no way affected by the legislative changes. It is to be 
 kept in view that the jurisdiction enactments of the recent 
 Sheriff Courts Acts relate to the Sheriff Court alone, and that 
 it expressly declares that "nothing herein contained shall 
 " derogate from any jurisdiction, powers, or authority presently 
 " possessed or in use to be exercised by the Sheriffs of 
 •" Scotland." 
 
 Appendix, s. 5. 7 Ed. VII. c. 51, s. 5. 
 
 8. Suspension. 
 
 113. Suspension was a process originally competent only in 
 the Court of Session. Its object is to prevent the execution of 
 diligence or threatened diligence, and to preserve the status </</<< 
 until an alleged illegality has been inquired into, or the rights 
 of parties have been finally determined. It is akin to the 
 process of interdict, which aims at the prevention of ;i
 
 I. JURISDICTION. 
 
 threatened wrong, whilst mutters are still intact, and an inter- 
 conclusion is commonly conjoined with a craving- for 
 Buspension. Suspension is not appropriate where appeal is 
 competent, bu1 it appeal is precluded, or is foreclosed by 
 extract having been obtained, suspension may be competent. 
 
 Simpson v. Young, 1852, 14 D. Mackenzie v. N.B.R. Co., 1879. 
 
 990 7 R - 128 - 
 
 Watt v I ".vn. 1879, 7 R. 126. Lamb v. Thomson, 1901, 4 F. 88. 
 
 114. In 1838 a limited suspension jurisdiction was con- 
 ferred upon the Sheriff, to suspend a charge for payment of a 
 sum not exceeding £25. This applied only to a charge " given 
 " on a decree of registration proceeding on a bond bill contract 
 "or other form of obligation registered in any Sheriff Court 
 "books, or in the books of Council and Session, or any others 
 " competent, or on Letters of horning following on suck decree." 
 This made suspension competent in the Sheriff Court only as 
 a stay of diligence, upon a charge actually given. And to this 
 limited effect the jurisdiction was of little practical value, 
 and the process was seldom resorted to. The Sheriff Courts 
 Act, 1907, increased the value limit to £50, and included the 
 case of a threatened charge upon a decree of Court as well as a 
 decree of registration, so that, within the £50 value limit, 
 the jurisdiction of the Sheriff Court is now concurrent with 
 that of the Court of Session, not only as regards suspension 
 as a stay of diligence, but also as an original proceeding. 
 
 Appendix, s. 5 (5), Rules 123- 7 Ed. VII. c. 51, s. 5. 
 
 125. 
 
 115. Suspension is not necessarily competent in the Sheriff 
 Court because a charge has been given, or is threatened, on a 
 decree which is eat facie for a sum not exceeding £50; for the 
 value of a cause is not necessarily measured by the amount 
 which is proposed to be exacted at the moment under diligence. 
 A decree upon which no charge can follow, as, for instance, a 
 decree of absolvitor, cannot, of course, be the subject of a 
 suspension. 
 
 Aitchison v. M'Donald (1910), 1911, S.C. 174. 
 
 116. The suspension procedure is not exactly the same in 
 the Court of Session as in the Sheriff Court. In the Court of 
 Session the suspender presents a " note " in the Bill Chamber, 
 and the Lord Ordinary has a discretion, if he thinks the excep-
 
 SUSPENSION. 49 
 
 tional circumstances warrant his so doing, to pass the note 
 without caution or consignation. The Sheriff has no such 
 discretion, and he may sist diligence only " on sufficient caution 
 " being found in the hands of the Sheriff-clerk for the sum 
 " charged for interest and expenses, and a sum to be fixed by 
 " the Sheriff in respect of expenses to be incurred in the 
 " suspension process." The form in the Sheriff Court by which 
 a suspension process is initiated is not a note, but an initial 
 writ. 
 
 Appendix, Rules 123-125. 7 Ed. VII. c. 51, Sch. I. 
 
 117. Every person who may be decerned against in a Sheriff 
 Court decree has not necessarily the privilege of bringing an 
 action of suspension in the Sheriff Court, for the suspender 
 must have a domicile in Scotland. A foreigner, for instance, 
 who does not carry on business within any sheriffdom in 
 Scotland, against whom a Sheriff Court judgment has been 
 pronounced, can apparently still suspend only in the Court 
 of Session. The suspender's action is competent only " in the 
 " Sheriff Court of his domicile " (which is not necessarily the 
 Court where decree was granted). The domicile here referred 
 to may perhaps, read strictly, mean the suspender's residence; 
 but a person is liable to be cited to answer in the Sheriff Court 
 upon other grounds than that of residence, and the enactment, 
 read along with the other provisions of the Sheriff Courts Acts, 
 may probably be reasonably read as including a domicile of 
 citation (or, in the case of joint suspenders, the domicile of 
 one of them), as for, instance, the case of an association or 
 company carrying on business within a sheriffdom. 
 
 Appendix, Rules 123-125. M'Kendrick v. Nat. Union Dock 
 
 7 Ed. VII. c. 51, Sch. I. Lab., 1911, S.C. 83. 
 
 118. In the Sheriff Court the process of suspension is com- 
 petent only if the charge proceeds upon a decree for payment 
 of money. A charge upon an ad factum prcestandum decree, 
 or a warrant for imprisonment, can still be competently 
 suspended only in the Court of Session. Within the statutory 
 limits, the process may competently be raised in the Sheriff 
 Court, whether the decree has been granted in foro or in 
 absence, and whether the charge has actually been given, or is 
 merely threatened. So soon as a decree has been extracted 
 by the creditor, a charge on it is possible, but a charge may 
 
 4
 
 50 JURISDICTION. 
 
 sometimes be prospectively threatened. Suspension appears 
 to be compel nil so soon as a threat to charge has been made, 
 or at least so soon as decree has been extracted. 
 
 Appendix, s. 5 (5). 7 Ed. VII. c. 51, s. 5 (5). 
 
 111). A suspension process in the Sheriff Court is a summary 
 application. The initial writ should narrate the diligence which 
 is being operated, or is threatened, and crave the Court to 
 suspend it. The finding of caution by the suspender is com- 
 pulsory, but the amount of caution is in the discretion of the 
 Sheriff. If a prima facie case is presented and caution is 
 found, the Sheriff sists diligence. He may order answers. 
 Intimation of the sist interpels the charger from doing actual 
 diligence, such as executing a poinding, or seeking a fiat for 
 imprisonment ; but the charger is not debarred from executing 
 merely preventive diligence, such as arrestment or inhibition. 
 If the charger disregard the sist of diligence, he may be dealt 
 with for contempt of Court. The proceedings in a suspension 
 process are summary, and the evidence is not necessarily 
 recorded. The judgment of the Sheriff must be in writing. 
 
 Appendix, s. 50, Rules 82, 123- Tait v. Gordon, 1828, 6 S. 
 
 125. 1056. 
 
 7 Ed. VII. c. 51, s. 50. Keltie v. Wilson, 1828, 7 S. 208. 
 
 Miller v. Wilson, 1749, Mor. 
 
 15148. 
 
 120. The procedure rules of the Sheriff Courts Act, 1907, 
 are not very lucid on the subject of suspension, and at first 
 sight might appear to permit of a judgment of one Sheriff 
 Court being reviewed in another, or even to permit of a Sheriff 
 reviewing his own judgment ; but the intention of the statute 
 probably was only to afford an opportunity for the local cor- 
 rection of error in the decree or the charge. In practice this 
 suspension power is rarely used, and it is likely to be used 
 only where there has been some obvious error. Suspension 
 may be useful also where a statutory power is being oppres- 
 sively used, as for instance, where rating statutes provide, as 
 they often do, that upon a certificate that the rates are due 
 and resting owing, the Sheriff may issue a summary warrant 
 for their recovery. A ratepayer included in the certificate 
 has no opportunity of being heard, although he may have a 
 possible answer. The warrant is granted de piano, and it 
 becomes a decree of Court upon which a diligence may follow.
 
 SUSPENSION. -, 
 
 A charge, or threatened charge, upon decree bo obtained, 
 now be conveniently suspended in the Sheriff Court. 
 
 Appendix, s. 5 (5), Rules 123-125. 
 
 121. What appeal rights were intended in a suspension 
 was not very clear upon the 1907 Act. As regards the qui 
 of the competency of the suspension process, the aim of rule 
 125 of the Act seems to have been to prevent mere dilatory 
 appeal in this summary process. The competency of a 
 suspension process is generally the most important element 
 in it, but the Sheriff's judgment upon it is declared to be 
 final. 
 
 Appendix, s. 27, 28, Rules 123- Allen v. Edin. Corp. (1908), 1909, 
 
 125. S.C. 70. 
 
 7 Ed. VII. c. 51, s. 5 (5), Sch. I Darngavil Coal Co. v. Johnston, 
 
 Rule 125. 1909, 25 S.C.R. 228. 
 
 122. As regards appeal to the Court of Session, whatever 
 doubt may have existed under the Act of 1907 is set at rest 
 by the Act of 1913, for a suspension is only competent at all 
 in the Sheriff Court within the £50 value limit. In a sus- 
 pension process, accordingly, there appears to be no appeal 
 beyond the Sheriff, either upon the question of competency 
 or anything else, unless the Sheriff certifies the cause for 
 appeal to the Court of Session. 
 
 Appendix, s. 28, Proviso 1. 2 & 3 Geo. V. c. 28, s. 2. 
 
 7 Ed. VII. c. 51, s. 5 (5). 
 
 123. It is thought, however, that it is not to be inferred 
 from the terms of rule 125 of the 1907 Act that the only 
 permissible appeal from the Sheriff-Substitute to the Sheriff 
 is one upon a plea of competency. All that the rule says is 
 that upon that particular plea the Sheriff's decision is final. 
 It says nothing at all about appeal upon the merits of the 
 cause; and the very fact that the appeal restriction is so 
 expressly limited in its operation, infers that, otherwi- 
 suspension process follows the ordinary rules of procedure, 
 and so, if the cause is certified for appeal, it falls within 
 section 29 of the Sheriff Courts Act, 1907, and thus, in the 
 end, the appellate Court might come to review a judgment 
 upon the competency. 
 
 Appendix, s. 28, Proviso 1, s. 29.
 
 52 JURISDICTION. 
 
 9. Admiralty. 
 
 124. In Scotland, up (ill 1830, as in England still, 
 Admiralty jurisdiction was independent. All causes relating 
 to maritime affairs had to be brought before the High Court 
 of Admiralty in Scotland. This, of course, led, as restriction 
 of jurisdiction always does, to much doubt, and much ingenious 
 discussion, as to what fell within the maritime jurisdiction, 
 and what did not. There was not much room for doubt as 
 regards broad questions arising upon maritime contracts, but 
 in many incidental questions doubts arose as to what were 
 properly maritime contracts, and what wore rather personal 
 contracts, although relating to maritime affairs. The distinc- 
 tion was of some practical interest to the litigants, because, 
 in the Admiralty Court, both might be required to find 
 caution, the pursuer for costs if he were unsuccessful, and 
 the defender that he should implement a decree if against 
 him. All such questions were avoided by abolishing the High 
 Court of Admiralty as a separate tribunal, and merging its 
 jurisdiction in that of the Court of Session and the Sheriff 
 Court. The form of, and procedure in, an Admiralty cause 
 are now the same as in any other cause. The statute which 
 effected this change, however, still left some room for doubt 
 as to the exact extent of the Sheriff's Admiralty jurisdiction, 
 and how far especially it extended to foreigners. To remove 
 these doubts, the Sheriff Courts Act, 1838, declared that " the 
 "powers and jurisdictions formerly competent to the High 
 " Court of Admiralty in Scotland in all maritime causes, civil 
 " and criminal, shall be competent to the said Sheriffs and 
 " their Substitutes, provided that the defender shall, upon any 
 " legal ground of jurisdiction, be amenable to the jurisdiction 
 " of the Sheriff before whom any cause or proceeding may be 
 "raised." 
 
 1 Will. IV. c. 69. 1 & 2 Vict. c. 119, s. 21. 
 
 125. The Sheriff Courts Act, 1907, repealed the provisions 
 of the older Acts, and, inter alia, preserved the very necessary 
 and convenient geographical enactment of 1830, that, where 
 counties are separated by a firth or estuary, the Sheriff on 
 either side has jurisdiction. It omits, however, one provision 
 of the 1830 Act, which led to inconvenience, and to evasion
 
 ADMIRALTY. 53 
 
 of the jurisdiction. That provision was, that in such a case 
 of cumulative jurisdiction, the action should be broughl in 
 the county of the defender's residence domicile. In many 
 maritime actions the defender has no domicile of residence in 
 either sheriffdom, or in Scotland. Letters of arrestment may 
 now be issued from the Court of the sheriffdom on either side 
 of the estuary, and the action need not necessarily be brought 
 in the Court of defender's domicile, but may be brought in 
 whichever district the defender, under the broadened regula- 
 tions of present-day practice, is amenable, or has been made 
 amenable, to Sheriff Court jurisdiction. 
 
 Appendix, s. 4. 7 Ed. VII. c. 51, s. 4. 
 
 1 Will. IV. c. 69, s. 24. 
 
 126. The Sheriff Court civil jurisdiction in seaboard 
 territories covers actions arising out of delict committed ;it 
 sea, within three miles of the shore. A party, therefore, 
 guilty of delict at sea, within the three-mile limit, is in the 
 same position as if he had been on the shore of the adjacent 
 sheriffdom, and, for a civil action arising out of that delict 
 at sea, that person, even if a foreigner, may, if found within 
 that sheriffdom, be personally cited there, and so rendered 
 amenable to its jurisdiction. As regards " all persons engaged 
 " in catching, curing, and dealing in fish," the Herring Fishery 
 Act of 1808 extended the jurisdiction of the Sheriff Court to 
 ten miles seaward. 
 
 Appendix, s. 6 (i). Macleod v. Dobson, 1900, 16 
 
 48 Geo. III. c. 110, s. 60. S.C.R. 104. 
 
 7 Ed. VII. e. 51, s. 6 (i). 
 
 127. As regards contraventions and offences under the Sea 
 Fisheries Acts, 1883-1891, or bye-laws made in pursuance 
 thereof, which fall to be dealt with under the Summary Juris- 
 diction Acts, the Sheriff Court of the district abutting on the 
 sea coast which is nearest to the place Avhere the offence has 
 been committed has statutory jurisdiction to punish the 
 offender, whether the offence has been committed on the sea 
 coast, or at sea, beyond the ordinary jurisdiction of the Sheriff 
 Court as a Court of summary jurisdiction, but this extension of 
 Sheriff Court jurisdiction does not apply to civil actions. 
 
 46 & 47 Vict. c. 22, s. 16. 54 & 55 Vict. c. 37, s. 8. 
 
 48 & 49 Vict, c. 70, s. 7.
 
 54 J ITRISDICTION. 
 
 10. Declaratory. 
 
 128. The class of actions of which the greatest number is 
 affected by the Sheriff Courts Acts, 1907-1913, is the declara- 
 tory class. Actions of declarator were formerly competent 
 only in the Court of Session; but there were many subsidiary 
 actions which were recognised as competent in the Sheriff 
 Court, and the multitude of conflicting decisions upon ques- 
 tions of jurisdiction present many peculiar results, which are 
 now only of historical interest, as illustrating the evils of 
 indefinite jurisdiction laws. All anomalies have been removed, 
 and procedure in declarators simplified, by the extension of the 
 jurisdiction of the Sheriff Court to include every kind of action 
 of declarator, except a consistorial action, or an action of 
 reduction, or an action to determine personal status. 
 
 Appendix, s. 5 (1). 2 & 3 Geo. V. c. 28, Sch. I. 
 
 7 Ed. VII. c. 51, s. 5. 
 
 129. But although actions of declarator at common law are 
 now generally competent in the Sheriff Court,, statutory actions 
 of declarator may not be so. The Sheriff Courts Act, 1907, 
 repeals prior statutes only so far as these are inconsistent with 
 the Sheriff Courts Act. Thus, although, under the Trusts Act 
 of 1867, proceedings to complete a title in a lapsed trust take 
 the form of a declarator, that statute expressly directs the pro- 
 ceedings to be taken before a Lord Ordinary. This is not 
 inconsistent with the Sheriff Courts Acts. Accordingly, 
 although such a declarator is not expressly included amongst 
 the exceptions of the Sheriff Courts Act itself, it is in fact 
 excluded, because this statutory privative jurisdiction of the 
 Lord Ordinary cannot be taken away by implication. In the 
 case of all declarators brought under statutes, therefore, the 
 statutes should be carefully consulted as to the competent 
 forum. Generally speaking, any action of declarator is now 
 competent in the Sheriff Court, unless it is barred by statute. 
 
 Appendix, s. 5 (1), 52. Fife Coal Co. v. Bernard's 
 
 30 & 31 Vict. c. 97, s. 14-16. Trustees, 1907, S.C. 494. 
 
 Clark v. Law, 1887, 3 S.C.R. Trades Maiden Hospital v. 
 
 360. Mackersy, 1907, S.C. 73. 
 Motherwell v. Manwell, 1903, 5 
 
 F. 619. 
 
 130. The broad jurisdiction now conferred upon the Sheriff 
 Court is, of course, to be exercised within the recognised limits
 
 DECLARATORY. 
 
 applicable to declaratory actions in general. Thus it is not 
 competent now in the Sheriff Court, any more than in the 
 Court of Session, merely to seek a judicial opinion upon an 
 abstract question of law. The pursuer must have an actual 
 interest to have some particular right declared to be his, and 
 that must be a right which some other person is challeng 
 But it may suffice that a certain right is not clear, although it 
 is not yet formally challenged, and the pursuer's interest may 
 be to have his legal right declared before he proceeds to 
 exercise it. The question of interest is liberally construed, 
 and, if there is an actual or possible challenger, a litigant may 
 bring an action of declarator to obtain a judicial finding upon 
 a legal question, in the answer to which the pursuer has some 
 real interest. 
 
 Lyle v. Balfour, 1830, 9 S. 22. Fleming v. M 'Lagan, 1879, 6 R. 
 
 Harvey v. Harvey's Trustees, 588. 
 
 1860, 22 D. 1310. Calender's Cable Co. v Glasgow 
 
 Mags, of Edin. v. Warrender, Corp., 1900, 2 F. 397. 
 
 1863, 1 M. 887. 
 
 11. Ministerial. 
 
 131. As judge ordinary of the bounds, the Sheriff has, both 
 at common law or under statute, very important jurisdiction, 
 of an administrative or semi-judicial character, in regard to 
 a great variety of matters. Inter alia, he is ex officio a justice 
 of the peace, and also a commissioner of income tax ; and he 
 has administrative, as well as judicial, duties in connection 
 with the laws relating to bankruptcy, lunacy, registration of 
 births, &c, the care of children, habitual drunkards, the poor 
 law, the law relating to public health, and a great many other 
 matters. 
 
 132. A ministerial duty of the Sheriff which does not 
 properly fall within either his summary duties, or his ordinary 
 Court duties, is presiding annually in February at the striking 
 of fiars prices. This duty may be discharged by the Sheritl or 
 the Sheriff-Substitute. If by the latter, there is no appeal to 
 the Sheriff. It fell to the Sheriff originally, probably because 
 he, as the Crown fiscal officer, fixed the prices at which Crown 
 rents payable in kind might be converted. The fiars are the 
 average prices of various kinds of grain crop. Separate liars 
 prices are struck in each sheriffdom. These prices regulate for
 
 56 JURISDICTION. 
 
 the year the value of parish ministers' stipends, Crown com- 
 positions, and various payments under old leases and feus and 
 other contracts. Where there are more districts than one in a 
 sheriffdom, the fiars prices are struck at the Court of the 
 district within which the county town is situated. The Sheriff 
 selects a jury of fifteen, of whom eight are heritors, who elect 
 one of themselves as chancellor, and under his direction they 
 receive and tabulate the evidence tendered, and ascertain the 
 average, or, as it is termed, strike the fiars prices. To the 
 result thus arrived at, the Sheriff interpones authority, and the 
 prices so fixed are the criterion for ascertaining values for the 
 year. The result arrived at by the Fiars Court is not subject 
 to review, although the Court of Session would probably inter- 
 fere to remedy any gross irregularity of procedure, or obvious 
 
 error. 
 
 Act 1584, c. 22. Ersk. I. 4, 6. 
 
 48 Geo. III. c. 138. Howden and Others >: Earl of 
 
 Acts of Sederunt, 29th February, Haddington, 1851, 13 D. 522. 
 1728, 9th March, 1850. 
 
 133. Another ministerial duty performed by the Sheriff 
 is the supervision of the jury list. He returns and summons 
 jurors for the Supreme Court, as well as for the Sheriff Court. 
 
 6 Geo. IV. c. 22. 31 & 32 Vict. c. 100, s. 45. 
 
 134. One most useful form of jurisdiction exercised by the 
 Sheriff in his ministerial capacity, which was at one time of 
 importance, but is now become almost obsolete, is his power to 
 detain within his sheriffdom upon a fugce warrant a person 
 proposing to evade diligence by fleeing the country. Formerly 
 a creditor who was able to state an ex facie claim, decree for 
 which, if granted, might be followed by imprisonment, had the 
 right to have his debtor arrested in any sheriffdom within 
 which he was found, although the debtor might have no domi- 
 cile and no place of business there, if the creditor deponed 
 to facts and circumstances very clearly inferring that the 
 debtor was permanently fleeing the country, and showed a 
 reasonable prima facie case for his being detained till he 
 found caution de judicio sisti. This was, however, always an 
 ancillary diligence only, not one which of itself could ever 
 operate payment of debt. When the Debtors Act, 1880, 
 abolished imprisonment for debt, therefore, the ancillary dili- 
 gence fell with it. So far as imprisonment became incom-
 
 MINISTERIAL. 57 
 
 petent, so far also it became incompetent to grant warrant 
 against a person in meditatione fugce. But the 1880 Am 
 expressly enacted that "nothing- contained in this Act shall 
 "affect or prevent the apprehension or imprisonment of any 
 " person under a warrant granted against him as being in 
 " meditation e fugce, or under any decree or obligation ad 
 "factum prccstandum." The only decrees which after 
 could warrant imprisonment were (a) ad factum prcestandum, 
 (b) for Crown taxes or penalties, (c) for statutory assessments, 
 (d) for aliment. The Act of 1880, however, was, two years 
 later, qualified by the Civil Imprisonment Act, 1882, which 
 made imprisonment, even for an alimentary debt, incompetent 
 as a diligence following a decree, and substituted for it a new 
 process under which six weeks' imprisonment might be imposed 
 for wilful failure to pay sums decerned for aliment. The 
 ancillary diligence of arrest in meditatione fugce was not 
 expressly saved in the 1882 Act, as it had been in the 1880 
 Act, and so, as regards alimentary debts, it fell in 1882, along 
 with the imprisonment diligence itself. It, unfortunately, 
 therefore seems to be no longer competent to arrest, upon a 
 fugce warrant, a debtor in an alimentary debt. 
 
 43 & 44 Vict. c. 34, s. 4. Glenday v. Johnstone, 1905, 8 
 
 45 & 46 Vict. c. 42, s. 3-4. F. 24. 
 
 135. Thus qualified, the exceptions of the 1880 Act 
 
 nominally still remain, but these are now so trifling and of 
 
 such a nature that arrestment upon a fugce warrant is not likely 
 
 to be attempted, and may probably now be regarded as an 
 
 obsolete process. If it is used, an application for a fugce 
 
 warrant is a summary application, which requires no service, 
 
 but a warrant is not granted till the creditor has made a 
 
 deposition as to the verity of his claim, and as to the debtor's 
 
 intention to abscond. If granted, the warrant is broughl 
 
 under review, not by appeal, but by suspension in the Court 
 
 of Session. 
 
 43 & 44 Vict c. 34, s. 4. M'Dermott v. Ramsay, 1876, 4 
 
 45 & 46 Vict. c. 42, s. 5, 9. R. 217. 
 
 Marshall v. Dobson, 1844, 7 D. A B v. C D, 1903. 19 S.C B. 
 
 232. 268. 
 
 12. Criminal. 
 
 136. The common law criminal jurisdiction of the Sheriff 
 extends to every description of crime committed within his
 
 58 JURISDICTION. 
 
 sheriffdom, except such as are, by statute, excluded, and what 
 are called the pleas of the Crown, which, by long-established 
 practice, are relegated to the Court of Justiciary. But, 
 except murder, practically all crimes are now bailable, and 
 in practice all bailable offences may be tried in the Sheriff 
 Court. He has also a varied criminal and quasi-criminal 
 jurisdiction under statute. It is not, however, within the 
 scope of this work to enter in detail upon the powers and 
 duties of the Sheriff in criminal matters proper. Either the 
 Sheriff or the Sheriff-Substitute may preside in the Criminal 
 Court, as in the Criminal Court there is no appeal from the 
 Sheriff-Substitute to the Sheriff. 
 
 13. Declinature of Jurisdiction. 
 
 137. Jurisdiction, although competent in its nature, may, 
 
 in certain special circumstances, be declined, either by the 
 
 judge or by the parties. If an action is, from its nature, 
 
 obviousl}- not competent in the Sheriff Court, the Sheriff may 
 
 decline to entertain it, even if no party object. Formerly 
 
 certain persons were entitled to claim exemption from Sheriff 
 
 Court jurisdiction. Peers and members of Parliament might 
 
 not be sued during the sitting of Parliament, but this privilege 
 
 no longer exists. The Sheriff Court jurisdiction might also 
 
 be declined by members of the College of Justice, including 
 
 the Court of Session judges and their clerks, advocates and 
 
 their clerks, officials of the Court of Session, Writers to the 
 
 Signet, and probably (but doubtfully) Solicitors before the 
 
 Supreme Courts. The Sheriff Court Act of 1853 abolished 
 
 this privilege. The provision of that Act is repeated in the 
 
 Sheriff Courts Act, 1907. 
 
 Appendix, s. 10. 7 Ed. VII. c. 51, s. 10. 
 
 10 Geo. IV. c. 50. Frazer, 1840, 2 S. 1254. 
 
 16 & 17 Vict. c. 80, s. 48. 
 
 138. Affinity is a legal ground of declinature of a judge's 
 jurisdiction, and, as it is statutory, it cannot be waived of 
 consent. If a father, brother, or son of the judge, or an 
 uncle or nephew by consanguinity, is a party in a cause, the 
 judge himself declines to exercise jurisdiction, and should he, 
 by inadvertance, pronounce decree, it is not enforceable. 
 This ground of declinature does not apply where a party is 
 uncle or nephew to the judge by affinity, or a party's wife
 
 DECLINATURE OF JURISDICTION. 
 
 is sister to the judge's wife, or the judge is related to a pi 
 wife; although a plea of declinature has been sustained where 
 a judge's daughter was the wife of a son of one of th< 
 
 Acts 1594, c. 216, 1681 c. 13. .Mowbray's Trustees v. M 
 
 Ersk. I. 2, 26. bray, 1883, 10 R. 460. 
 
 Gordon v. Gordon's Trustees, Moncrieff v. Vton ri if, 1904, 6 
 
 1866, 4 M. 501. F. 1021. 
 Campbell v. Campbell, 1866, 4 
 
 M. 867. 
 
 139. Interest on the part of a judge is also a ground for 
 declining his jurisdiction, but the interest must be substantial, 
 such as might bias the mind of the judge, and must be personal 
 to him, and direct. Mere contingent interest does not ground 
 the plea ; nor does public interest, as being a rnembor of a 
 public corporation or board. A plea of declinature is probably 
 theoretically competent, although it may be waived, and in 
 practice is seldom if ever taken, where a judge is personally 
 (not merely as a trustee) a shareholder in an incorporated 
 company. If such a plea were taken, declining the jurisdic- 
 tion of the modern judicial shareholder in the modern limited 
 company, it would probably be regarded as falling within the 
 description of the Lord Justice-Clerk in Borthicick's case as a 
 " ground of disqualification of the most shadowy kind," and 
 it would probably present itself to the Court, as it did in 
 that case, as irrational and absurd that a judge should be 
 disqualified merely bcause he happened to be one amongst 
 thousands of members of a corporation. Membership of an 
 insurance company was by statute exrjressly abolished as a 
 ground of declinature. The Sheriff-Substitute is not neces- 
 sarily disqualified because the Sheriff may be, but the Sheiilf s 
 disqualification would, of course, preclude appeal to liim. 
 
 31 & 32 Vict. c. 100, s. 103. Wildbridge v. Anderson, 1897, 
 
 Wallace v. Colquhoun, 1823, 2 25 R. (J.C.) 27. 
 
 S. 127. Caledonian Railway Company v. 
 
 Lord Advocate v. Edinburgh Ramsay, 1897, 24 R. (J.C.) 48. 
 
 Commissioners of Supply, 1861, Downie v. Fiaherrow Harbour 
 
 23 D. 933. Trustees, 1903, 5 F. (J.C.) 101. 
 
 Belfrage v. Davidson, 1862, 24 D. Rae v. Eamilton, 1904, 6 F. 
 
 1132. (J.C.) 42. 
 
 Borthwick v. Scottish Widows' Free Church of Scotland v. 
 
 Fund Assurance Company, Macrae, 1905, 7 F. 686. 
 
 1864, 2 M. 595 Goodall v. Bilaland, fcc., 1909, 
 
 S.C. 1152. 
 
 140. Interest is not, like affinity, a radical disqualification 
 which renders proceedings null. It is merely a ground of 
 declinature which may be pleaded, but seldom is. If pleaded,
 
 60 JURISDICTION. 
 
 it is a plea in bar, and must bo taken at an early stage of the 
 process. If in knowledge of the ground of declinature, the 
 plea <>!' declinature is not tinieously taken, it is held to be 
 
 waived. 
 
 Ommaney v. Smith, 1851, 13 D. Duke of Athole v. Robertson, 
 
 678. 1869, 8 M. 299. 
 
 14. Exclusion of Jurisdiction. 
 
 141. In some matters the jurisdiction of the Sheriff is 
 excluded by statute, an instance of which is, under the Public 
 Health Act, 1897, the exclusion of the jurisdiction of the 
 resident Sheriff-Substitute, in proceedings for the formation 
 of drainage, sewage, or water districts, which must be taken 
 before the Sheriff. Apart from statute some matters are 
 privative to particular Courts by usage. In such, of course, 
 the jurisdiction of the Sheriff is excluded unless the Sheriff 
 Court is that to which usage allocates the action. Some 
 matters are regarded as appropriate to the Court of Session 
 only, as, for instance, actions against high officers of State 
 in regard to either their personal actings or their actings as 
 State officials. The Crown may, however, in an action in the 
 Sheriff Court between private parties, be competently called 
 for its interest, service being made upon the Lord Advocate. 
 So also actions against judges or magistrates, in their official 
 character, are not competent in the Sheriff Court. For their 
 acts of omission or commission in their capacity as magistrates, 
 such persons may be called to answer only in the Supreme 
 Court, although they may be domiciled in a sheriffdom, 
 and in their private capacity may be liable to the local 
 jurisdiction. 
 
 19 & 20 Vict. c. 50. Somerville v. Lord Advocate, 
 
 59 & 60 Vict. c. 25, s. 68 (6). 1893, 20 R. 1050. 
 
 60 & 61 Vict. c. 38, s. 122. Magistrates of Helensburgh r. 
 A v. B, 1549, Mor. 7323. Brock, 1905, 13 S.L.T. 98. 
 Buchanan v. Keating, 1854, 17 
 
 D. 155. 
 
 142. In such matters as those just referred to, there is no 
 inconvenience to the public, and they are matters in regard to 
 which it would obviously be incongruous that any inferior 
 Court should exercise jurisdiction. There are, however, 
 matters the exclusion of which from the Sheriff Courts is a 
 serious public inconvenience. Amongst these, perhaps the
 
 EXCLUSION OF JURISDICTION. , i 
 
 most glaring illustration, and thai which mosl afEecte the 
 commercial community, is the denial of jurisdiction to the 
 Sheriff Court to supervise commercial liquidatii It is 
 
 within the discretion of the members of a Limited company 
 at any time to resolve that the company ho wound up, bul if 
 it is desired to have this done under the supervision of the 
 Court it is competent to apply for a supervision order onlv in 
 the Court of Session. 
 
 8 Ed. VII. c. 69, s. 135. 
 
 143. It is not very easy to perceive why a difference should 
 still be maintained between bankruptcy and liquidation 
 proceedings. The object of both is the realisation of a debtor's 
 assets, and the division of the proceeds amongst creditors 
 according to their rights and interests. But although there 
 is no value limit in the bankruptcy statutes, and an estate of 
 the greatest magnitude may be administered in bankruptcy 
 in the Sheriff Court, the liquidation of a limited liability 
 company of the most trifling description can be supervised 
 only by the Court of Session, for the Sheriff Court has no 
 jurisdiction under the Companies Acts. 
 
 19 & 20 Vict. c. 79. 8 Ed. VII. c. 69. s. 135. 
 
 20 & 21 Vict. c. 19. 
 
 144. It is to be regretted, also, that the Sheriff Court has 
 not a broader jurisdiction to appoint judicial factors otherwise 
 than in bankruptcy. There is no doubt, in name, the Judicial 
 Factors (Scotland) Act, 1880, which empowers the Sheriff '" to 
 " appoint judicial factors in cases of estates, the yearly value 
 " of which (heritable and moveable estate being taken together) 
 "does not exceed £100"; but, unfortunately, the interpreta- 
 tion clause of that Act negatives its title, for it restricts the 
 meaning of " judicial factor" to factor loco tutoris and curator 
 bonis. But the case of pupils or insane persons is not nearly 
 of so frequent occurrence as the case of a small trust estate. 
 where the expense of procuring the appointment and discharge 
 of a judicial factor in the Court of Session is burdensome. 
 Such an appointment is usually a matter of form, and the 
 restriction in the Act of 1880 seems uncalled for. As the law- 
 stands, however, the Sheriff Court cannot appoint a judicial 
 factor upon a testamentary trust estate, however small. There 
 is a broadened definition of "judicial factor" in the Trusts
 
 62 JURISDICTION. 
 
 (Scotland) Amendment Act of 1884. In that and the other 
 Trust Acts " judicial factor " includes " any person judicially 
 "appointed factor upon a trust estate or upon the estate of a 
 " person incapable of managing his own affairs, factor loco 
 " tutoris, factor loco absent is, and curator bonis." I n fortu- 
 nately, however, this more comprehensive definition covers the 
 Trusts Acts only, and does not apply to the Judicial Factors 
 Act of 1880, and so it is still incompetent in the Sheriff Court 
 to obtain the appointment of a judicial factor on any trust 
 estate. 
 
 43 & 44 Vict. c. 4, s. 3-4. 47 & 48 Vict. c. 63, s. 2. 
 
 145. It is a practice, however, recognised in most Sheriff 
 Courts that an interim factor, for an immediate special purpose, 
 may be nominated by the Sheriff, although it is not perhaps 
 very clear upon what ground the practice rests. Such an 
 appointment is only temporary, pending the appointment of 
 a person with a formal title. The most common instance is 
 where a trader has for the moment disappeared, but is not 
 regarded as insolvent, and there is no call for the adoption of 
 bankruptcy proceedings, but there is a pressing temporary 
 necessity for some one to take charge of stock and premises 
 till inquiry is made for the missing person. On the application, 
 ex parte, of a person who can show an interest, as, for instance, 
 a creditor, the Sheriff is probably entitled to appoint, and in 
 practice does appoint, a factor, to take interim custody of 
 effects or stock, and to preserve the situation pending such 
 more formal action being taken as may be competent or neces- 
 sary. This is the sort of thing to which the Sheriff Courts Act, 
 1907, probably refers when it includes (within the definition 
 of a " summary application ") " applications of a summary 
 " nature brought under the common law jurisdiction of the 
 " Sheriff." 
 
 Appendix, s. 3 (/<). 7 Ed. VII. c. 51, s. 3 (/,). 
 
 146. Another curious anomaly is that, if a trustee becomes 
 incapable of acting, the Sheriff has a limited jurisdiction, 
 under the Trusts Act of 1891, to remove him from office, but 
 the Sheriff cannot supply his place. In the case of a mortis 
 causa trust, the application for removal is made either to the 
 Court of Session or to the Sheriff Court which originally con-
 
 EXCLUSION OF JURISDICTION. 
 
 firmed the trustees. In the case of a marriage cont] 
 the application may be either to the Court of Session o: to the 
 Sheriff Court of the district in which the Bpousee are, or the 
 survivor of them is, domiciled. Ji ut whilst the Sheriff may 
 thus remove a trustee, he has no power to appoint another 
 trustee in his place, for the Act of 1891 Limits his power to 
 removal only, and the Trusts Act of 1867 expressly reqi 
 an application for the appointment of a new trustee to be 
 made to a Lord Ordinary in the Court of Session. 
 
 30 & 31 Vict. c. 97, s. 12, 16. 54 & 55 Vict. c. 44, s. 8. 
 
 147. The jurisdiction of the Sheriff Court, or, indeed, of 
 any Court of law, may be, and frequently is, excluded by con- 
 tract. In insurance policies, in friendly society rules, in 
 partnership agreements, and in many executorial contracts of 
 all sorts, it is a common stipulation that disputes arising shall 
 be settled by arbitration and not by Courts of law. But to 
 exclude the jurisdiction of a Court of law, and restrict a party's 
 remedy to arbitration, the language of the contract must be 
 clear and distinct. 
 
 M'Connell & Reid v. Smith, 1911, S.C. 635. 
 
 148. The jurisdiction of the Sheriff Court is excluded in 
 questions arising between individuals engaged in military 
 sci vice and their regiment or officers, as regards military 
 affairs; but a person does not, by becoming a soldier, erase 
 to be a citizen, and so he remains subject, in his personal 
 capacity, to the jurisdiction of the civil Courts. The Army 
 Regulations are regarded as akin to a contract with an arbitra- 
 tion clause, and military disputes are in effect contracted to 
 be settled by internal procedure under military law, appeal 
 lying from each grade officer to a higher grade officer, and the 
 decision of the commander-in-chief being final. Thus an 
 action is incompetent by a member of a regiment, against 
 his regiment, for payment of services rendered to the 
 regiment. The only course open to the soldier is to complain 
 that he has not been paid, to his captain in the Jiisi place. 1 1' 
 not satisfied with the captain's decision, he may appeal to the 
 higher grade officers in succession. 
 
 44 & 45 Vict. c. 58. s. 43. Marks c. Frogley, L.R. 1 Q.B. 
 
 Army Regulations 1908. s. 455, 899. 
 
 Appendix 8, s. 1. Dawkins v. Paulot. L.R. 5 Q.B. 
 
 121.
 
 64 JURISDICTION. 
 
 15. Transfer. 
 
 149. The latitude which the Sheriff Courts Acts, 1907-1913, 
 
 give as to jurisdiction, is safeguarded by wide transfer powers, 
 
 which may be exercised by the Sheriff either at his own hand, 
 
 or at the request of any of the parties. This power may 
 
 apparently be exercised whether the action is defended or not. 
 
 These rules appear to apply whether the action is being treated 
 
 as an ordinary action, or as a summary cause. 
 
 Appendix, Rules 19-21. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 19-21. 
 
 150. An action against several defenders, brought in the 
 Sheriff Court to the jurisdiction of which one of them is 
 subject, may be transferred to a Sheriff Court to whose juris- 
 diction any of the others is subject. The provision of the 
 Sheriff Courts Acts, which renders it now unnecessary to 
 resort to the Court of Session to lay an action, however 
 trifling, against joint defenders domiciled in different sheriff- 
 doms, removed a grievance which had led to hardship; but 
 the privilege of bringing the action in the Court of any one 
 of the defenders might be liable to abuse. This transfer power 
 leaves it in the discretion of the Sheriff before whom joint 
 defenders are sued to transfer the case to another Sheriff Court. 
 In exercising this power of transfer, regard will, no doubt, 
 be had to the convenience of, and probable expense to, all 
 parties. The decision of the Sheriff is final. There is no 
 specific direction as to how the transfer is to be carried out. 
 Probably no such direction was necessary, for the obvious 
 mode is for the Sheriff-clerk of the one Court to transmit the 
 process to the Sheriff-clerk of the other. The transferring 
 Sheriff alone seems to be invested with any discretion as to 
 making, or refusing to make, the transfer. The Court to which 
 the case is remitted has apparently no option but to receive 
 it, and in the transfer Court the case is to " proceed in all 
 " respects as if it had been originally there brought." 
 
 Appendix, s. 6 (a), Rules 19-21. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 19-21. 
 
 151. When a plea of no jurisdiction is sustained, the Sheriff 
 need not dismiss the action, as formerly he had to do. He is 
 not precluded from dismissing it, for his power of transfer is
 
 TRANSFER. 65 
 
 in this case optional. If the action is obviously frivolous, or 
 if its being brought in the wrong Court is obviously owing to 
 carelessness, it may probably be dismissed; but a mil. 
 to jurisdiction may be an innocent, and merely geographical, 
 error on the part of pursuer, and to dismiss bis action might 
 involve him in expense, and probably in loss, especially if he 
 has attached funds by arrestment on the dependence, which 
 would fall if the action were dismissed. In that event, the 
 course which is competent and convenient is to remit t In- 
 action to the proper Court, and, if its having been brought 
 in the wrong Court has prejudiced the defender, to allow 
 him costs, as the rule permits. 
 
 Appendix, Rule 21. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 21. 
 
 152. Eule 21 does not very clearly define what is covered 
 by " a plea of no jurisdiction," but from the context it is 
 thought that what is obviously meant is that a remit may be 
 made to another Sheriff Court, only when the plea is stated 
 as between sheriffdoms. If there is no jurisdiction in sheriff- 
 dom A, because the only Sheriff Court to the jurisdiction of 
 which the defender is amenable is that of sheriffdom B, 
 then it seems reasonable and convenient that the action should 
 be transferred to sheriffdom B, instead of being dismissed ; and 
 it seems reasonable also that, upon the question of transfer, 
 appeal to the Sheriff should be summary, and the Sheriff's 
 decision should be final. But where the plea is that there is 
 no jurisdiction at all against defender, in any Sheriff Court, 
 and this is sustained, the situation is quite different. The 
 only course then is to dismiss the action. This is not an 
 interlocutory judgment, appealable to the Sheriff only under 
 Eule 21, but it is the final judgment in the cause, appealable as 
 such, if appeal is competent, in the usual way. 
 
 Appendix, Rule 21. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 21. 
 
 153. Although there are not joint defenders, ami although 
 a jurisdiction plea has not been stated, the Sheriff 1ms power 
 to transfer any cause to another sheriffdom, ami this power 
 he may exercise ex propria viotu, or upon the motion of any 
 party. To a limited extent, this power existed under the 
 Sheriff Courts Act of 1876. When a defender had been sued 
 in the sheriffdom of his place of business, and had his domicile 
 
 5
 
 (iij JURISDICTION. 
 
 in another sheriffdom, the Sheriff had power to remit the cause 
 to the sheriffdom of the domicile. This power was, in the 
 Sheriff Courts AH, 1907, made general in its application. A 
 remit is to he made "upon sufficient cause," and the cause is 
 to he st;ited in the remitting interlocutor, which, by leave of 
 ill" Sheriff-Substitute, may within seven days be appealed 
 to the Sheriff, whose judgment is final. 
 
 Appendix, Rule 20. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 20. 
 
 154. Many varieties of circumstances may suggest tho 
 propriety of so transferring an action. One useful ground is 
 that of contingency, as, for instance, where an action is already 
 pending, raising- the same issues. Another "sufficient cause" 
 will be the lessening of expense. If a defender is sued in the 
 Sheriff Court of Dumfries, but all the witnesses who can speak 
 to the cause of action are in Stornoway, it would obviously 
 be to the advantage and convenience of all concerned that the 
 action should he remitted to Stornoway. The theory of these 
 transfer rules seems to be that the whole Sheriff Courts of 
 Scotland are to be regarded practically as one system, that 
 the hard and fast jurisdiction rules which have hitherto 
 prevailed are to be relaxed, and that a Sheriff Court cause, 
 in whatever district it is initiated, may be tried in that 
 Sheriff Court which affords the maximum of convenience, at 
 the minimum of expense, to all concerned. 
 
 Appendix, Rule 20. Cuthbertson v. Young, 1851, 13 
 
 7 Ed. VII. c 51, Sch. I., Rule D. 1308. 
 
 20. Robertson v. Duke of Athole, 
 
 1869, 8 M. 305. 
 
 155. So far as statutory direction is concerned, an action 
 may apparently be transferred at any stage; but it would 
 obviously be inconvenient that this should be done after 
 proceedings in the action last in date have been entered upon. 
 At all events, the Sheriff is not likely, unless for very special 
 reasons, to exercise his power of transfer at a later stage than 
 the closing of the record. 
 
 10. Piuvative Jurisdiction. 
 
 15G. The Sheriff Court has now privative jurisdiction in 
 all actions which are competent in that Court, where the value 
 of the cause, exclusive of interest and expenses, does not exceed
 
 PRIVATIVE JURISDICTION. 
 
 £50. Formerly the limit was 625; bul the Sheriff Courts 
 
 Act, 1907, raised it to £50. Tin's statute also contained a 
 proviso which in practice led to some confusion. It provided 
 that in actions ad factum prcestandum the ralue should be 
 deemed not to exceed £50 unless the Sin riff otherwise deter- 
 mined. The Sheriff Courts Act, 191-5, repealed this pr 
 The Act of 1913 has also repealed section 9 of the L907 A. t, 
 which had left the question of the competency of an action on 
 the ground of its value to the final determination of the Sheriff. 
 The situation accordingly appears to be now, what it was 
 before 1907, that such an action maybe brought in the Court of 
 Session, leaving the question whether it should have been 
 brought in the Sheriff Court to be determined then, upon a plea 
 of competency to be stated in the Court of Session. 
 
 Appendix, s. 7. Pagan & Osborne v. Haiz, 1910, 
 
 7 Ed. VII. c. 51, s. 7-9. S.C. 34. 
 
 2 & 3 Geo. V. c. 28, s. 1.
 
 CHAPTER III. 
 GROUNDS OF JURISDICTION. 
 
 1. Ratione Domicilii. 
 
 157. Every person resident within a sheriffdom is liable to 
 be sued in its Courts. Where a sheriffdom is divided into 
 districts, with district Courts, a resident within any district 
 is amenable to the district Court. If a person has a residence 
 in more than one sheriffdom, or in more than one district, ho 
 is subject to the jurisdiction of any of the Courts, unless by 
 statutory direction a particular action has been allocated to 
 one district Court, to the exclusion of others. Joint defenders, 
 all in Scotland, may be sued in the Court within whose juris- 
 diction any one of them resides. But whilst a pursuer has 
 thus apparently the choice of forum, his choice is not absolute, 
 for a plea of forum non conveniens may be stated by defender, 
 and the action may be transferred to another Court under 
 Rule 20. 
 
 Appendix, s. 5, Proviso 1, 6 (a). Sim v. Robinow, 1892, 19 R. 
 
 7 Ed. VII. c. 51, s. 6 {a), Sch. 665. 
 
 I., Rules 19-21. Davidson v. Davidson, 1891, 18 
 
 R. 884. 
 
 158. Jurisdiction ratione domicilii rests upon the fact of 
 residence alone. If it is clearly established that a particular 
 place is that which a person has selected as his dwelling-place, 
 thai is of itself sufficient to subject him to the jurisdiction, 
 no matter what the cause of action, or whether at the moment 
 the defender is actually at that residence or not. 
 
 Appendix, s. 6 (a). Joel v. Gill, 1859, 21 D. 929. 
 
 7 Ed VII c 51, s. 6 (a). Johnston v. Strachan, 1861, 23 
 
 Ersk.' I. 2-16. D. 758. 
 
 Home v. Eccles, 1725, Mor. Steel v. Lindsay, 1881, 9 
 
 3704. R- 160. 
 
 159. The qualifying period of residence has been long fixed 
 at forty days. This does not rest upon statute, but is matter 
 of practice. It was obviously necessary to have some recog-
 
 RATIOXE DOMICILII. 
 
 nised rule to avoid confusion, and in practice forty days w&e 
 
 adopted as reasonable. Even shorter residence thar forty 
 
 days might suffice if it were clear that the defender had taken 
 
 up residence in a sheriffdom animo remanendi, but the general 
 
 rule is, " In our system of jurisprudence, to prevent disputes, 
 
 ''constant practice has fixed that a residence of forty days is 
 
 'sufficient, not mere presence within the territory, travelling 
 
 'about, and never fixed in any one place, but continuous 
 
 ' residence in one locality for forty days. According to the 
 
 'principles of Scotch law, therefore, one who has resided 
 
 'constantly at one place within Scotland for forty d;i\ 
 
 ' subject to the jurisdiction of the Scotch Courts ratione 
 
 ' domicilii." 
 
 Appendix, s. 6 (a). Per Lord Inglis in Joel v. 
 
 7 Ed. VII. c. 51, s. 6 (a). Gill, 1859, 21 D. 929. 
 
 Ersk. I. 2-16. 
 
 100. The continuity of personal residence does not require to 
 be absolute, so long as absence does not negative the aspect of 
 residence. It is a question of circumstances always. Such 
 a fact as that a man had settled his wife and family in a 
 dwelling-house within a territory, would probably in ordinary 
 circumstances be of itself regarded as sufficient evidence of 
 the residence qualification, making him amenable to the Court 
 of that jurisdiction, even if he himself should spend very little 
 time at his home. But if the circumstances were exceptional, 
 as, for instance, if a man were judicially separated from his 
 wife, and living apart from his family, the family residence 
 would not necessarily be his domicile. Speaking generally, 
 what the Court has to be satisfied of is that the domicile is not 
 in any way fictitious, but is real. 
 
 Irvine v. Deuchar, 1707, Mor. Dyson r. Dyson, 1909, 2 S.L.T. 
 
 3703. 404. 
 
 Stavert v. Stavert, 1882, 9 R. 
 
 519. 
 
 161. A residence, to constitute a domicile of citation, must 
 be reasonably the defender's own residence. The fact, 
 however, that one has sojourned for forty days in a friend's 
 house, or even in a hotel, although it does not necessarily 
 make that place his own home, may make it his domicile of 
 citation. For founding jurisdiction it is, of course, an 
 important element if the person have no dwelling-house of his
 
 70 GROUNDS OF JURISDICTION. 
 
 own, but makes his home in a hotel, or resides permanently in 
 another person's house, as many persons do. 
 
 Ritchie, &c, v. Frazer. 1852, Joel v. Gill, 1859, 21 D. 939. 
 
 15 D. 205. 
 
 162. Seafaring men when on shore, military men on 
 furlough, travellers, and others, having- no fixed abode, may 
 be subject to the jurisdiction of the sheriffdom within which 
 they temporarily dwell, even for a shorter period than forty 
 days. But soldiers and sailors who have a fixed abode do 
 not lose their domicile by going abroad on service. Such a 
 person may be cited at his domicile, although at the moment 
 he may be non-resident there. If the citation is objected to, 
 a pursuer may be barred by his actings from pleading that 
 the citation was valid. 
 
 Brown v. M'AUan, 1845, 7 D. Morrison v. Vallance's Execu- 
 
 423. tors, 1907, S.C. 999. 
 
 1G3. The rule as to domicile applies to parties whose 
 domicile is not personal, but derivative. Thus the domicile 
 of a wife or a child is that of the husband or father, not 
 necessarily that of the place where the wife or the child may 
 happen to be at the moment. In special circumstances a wife 
 may have a domicile of citation of her own, as, for instance, 
 when she is judicially separated. A minor may be foris- 
 familiated, although still a minor, and he may have a domicile 
 of citation elsewhere than at his father's house. 
 
 Ringer v. Churchill, 1840, 2 I). Steel v. Lindsay, 1881, 9 R. 60. 
 
 307. 
 
 164. Section 6 (a) of the Sheriff Courts Act, 1907, if 
 literally construed, might appear to alter the law by dis- 
 pensing with the necessity for forty days' residence to con- 
 stitute jurisdiction, for its brief requirement is that the 
 defender " resides within the jurisdiction," without any men- 
 tion of duration of residence. But, having regard to the fact 
 that the established law prior to this statute required the 
 residence to be very clearly annuo remanendi, or to extend to 
 forty days, before it constituted a jurisdiction domicile, and 
 to the further fact that, in projecting that jurisdiction for a 
 further period of forty days, the latter portion of section 6 (a) 
 recognises tliat established law, it is thought that the Act of
 
 RATION E DOMICILII. 71 
 
 1907 docs not really affect the residential qualification as 
 previously recognised by the law, and that when the A<t speaks 
 of a defender who "resides within the jurisdiction " it r< 
 to a defender who had, in accordance with the established law 
 of Scotland, acquired a domicile of citation there by forty 
 days' residence there, or by settlement there ultimo rcmuiu mli. 
 
 Appendix, s. 6 (a). Mowbray v. Bruce, 1899, 15 
 
 7 Ed. VII. c. 51, s. 6 (a). S.C.R. 283. 
 
 2 & 3 Geo. V. c. 28, Sch. I. 
 
 lGo. Once a defender has acquired a domicile in any 
 sheriffdom in Scotland, if he shifts his domicile into another 
 sheriffdom, forty days' further residence is not required in the 
 new jurisdiction. If his new address is disclosed, his creditor 
 can follow him there at once. If his new address has not 
 been disclosed, then the effect of the recent statute is that the 
 old domicile determines where the defender may be com- 
 petently sued during a further period of forty day-. For 
 instance, if a defender has resided within Sheriffdom A for 
 forty days prior to 28th May, and has departed without dis- 
 closing- his new address, he may be sued in that Sheriffdom A 
 up till 7th July. If, however, he have left Sheriffdom A, and 
 openly settled himself in Sheriffdom B, with a known address, 
 then his creditor must follow him there, and may sue him in 
 Sheriffdom B only, and that at any time after 28th .May. 
 
 Appendix, s. 6 («). Callander v. Pollock, 1906, 22 
 
 7 Ed. VII. c. 51, s. 6 (a). S.C.R. 173. 
 
 1GG. The statute gives no direction as to the mode of 
 citation of the defender who has left within forty days, but 
 not disclosed his new address. It might, in rare cases, happen 
 that, although he had given up his residence, the defender 
 could still be served personally, but that is unlikely. Service 
 could not be effected by leaving the service copy with a 
 " servant " in defender's dwelling-house, for in the case sup- 
 posed there has ceased to be a dwelling-house or a servant. 
 Possibly keyhole service might be effectual, if it were desir- 
 able to encourage such service, which it is not, for the only 
 keyhole where alone such service could be made is the keyhole 
 of the defender's dwelling-place, and that in the case under 
 consideration has ceased to exist in fact, although in theory 
 for forty days it continues to be bis domicile of citation.
 
 72 GROUNDS OF JURISDICTION. 
 
 1G7. The Judicature Act of 1825 authorised citation, or 
 charge, edictally upon a person who had lefi his usual place of 
 residence, and had been absent forty days without disclosing 
 his now address, and who had no dwelling-house in Scotland 
 oc< upied by his family or servants. The Debtors (Scotland) 
 Act of L838 extended these provisions to arrestment; the Court 
 of Session Act of 1850 made them applicable to all proceedings ; 
 the Sheriff Courts Act of 187G applied edictal citation to the 
 Sheriff Court; and the Sheriff Courts Act, 1907, repeated the 
 1876 enactment. Edictal citation therefore may be competent 
 against a defender who has gone leaving no address. But 
 edictal citation requires an express warrant; and as defender's 
 whereabouts being unknown does not necessarily infer that 
 he has left Scotland, a party seeking a warrant to serve 
 edictally must take the responsibility of averring that the 
 defender has gone furth of Scotland. It is not enough to 
 design him as some time residing at an address in Scotland, 
 and now " believed to be " furth of Scotland. 
 
 Appendix, s. 6 (a). 39 & 40 Vict. c. 70, s. 9. 
 
 6 Geo. IV. c. 120, s. 53. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 1 & 2 Vict. c. 114, s. 18. 15. 
 
 13 & 14 Vict. c. 36, s. 22. 
 
 168. It will be observed that the projected jurisdiction of 
 forty days at the original domicile applies to the case of a 
 person who has no known residence in Scotland. The words 
 used might perhaps suggest that the case contemplated by 
 section G (a) of the 1907 Act, as amended by the 1913 Act, was 
 that of a person who had left his original domicile, but who 
 had still a residence somewhere in Scotland, although he had 
 not disclosed it to his creditor. The terms of the enactment, 
 however, apply comprehensively to every defender who has 
 acquired a domicile, whether he was originally a foreigner 
 or not, and so seem to include, for instance, a foreigner who 
 has come to Scotland, acquired a domicile, and gone back to 
 his native land within forty days. His residence in France 
 may be known to his creditor, but his residence in Scotland is 
 unknown. It seems open, therefore, to the creditor to sue that 
 foreigner in the Sheriff Court where he had acquired a domi- 
 cile, provided the creditor brings his action within forty days 
 of the foreigner's departure. To this small extent the statute 
 seems to alter the prior law, which was that jurisdiction ceased
 
 RATIONE DOMICILII. 7:; 
 
 to exist when such a person, alter acquiring a domicile by 
 
 residence, had left Scotland. 
 
 Appendix, s. 6 (a). Buchan v. Grimaldi, 1905, 7 F. 
 
 7 Ed. VII. c. 51, s. 6 (a). 917. 
 
 2 & 3 Geo V. c. 28, Sch. I. Mnrrison v. Vallance a Execu- 
 
 Corstorphine v. Kasten, 1898, 1 t'-r.s, 1907, S.C. 999. 
 F. 287. 
 
 169. A person who has never had a domicile in Scotland 
 at all cannot, of course, be subject to the jurisdiction of 
 the Slu'iitt' Court rat/one domicilii, but a person who was an 
 English travelling merchant, and had no Scotch domicile, but 
 was personally cited within Scotland, was held to be subject 
 to the jurisdiction of the Court of Session. In one case ;< 
 party with no fixed domicile who travelled about Scotland 
 acting as an emigration agent, engaging settlers for 
 colonies and arranging for sending them out, Avas held by 
 the Sheriff of Inverness to be subject to his jurisdiction, upon 
 the "round that an itinerant of this sort is liable to be con- 
 vened in any jurisdiction where he is personally cited. In a 
 suspension the Lord Ordinary (Lord Moncreiff) on the Bills 
 refused the bill of suspension, expressing the opinion that " the 
 " judgment of the Sheriff on the question of jurisdiction 
 " appears to be well founded in legal principle and sufficiently 
 " warranted by the facts of the case." In a very brief report 
 the reporter adds, " The judges were clearly of opinion that 
 " the pretence of this party not having been properly cited 
 " was quite untenable, and that if a man carries on a trade 
 " of this kind he must be amenable wherever he is personally 
 " cited." But there are no judges' opinions reported, and that 
 Inverness had been the locus contractus seems to have been the 
 ruling element in the case, rather than the element of personal 
 service, coupled with absence of domicile in Scotland. 
 
 M'Niven v. M'Kinnon, 1834, 12 Linn r. Casadinos, 1881, 8 R. 
 
 S. 453. 849. 
 
 2. Joint Defenders. 
 
 170. The Sheriff Courts Acts, 1907-1913, made another 
 important alteration upon the law as regards jurisdiction 
 founded upon domicile. Prior to 1907 that applied only to an 
 individual defender. Of course, joint defenders dwelling 
 within the same sheriffdom could always be jointly sued there,
 
 74 GROUNDS OF JURISDICTION. 
 
 but if the defenders were domiciled in different jurisdictions 
 
 an action against thern collectively could be brought only in 
 
 the Court of Session, however trifling the nature of the case 
 
 rnio-ht be. It is now competent to bring an action in any 
 
 Sheriff Court to whose jurisdiction any one of several joint 
 
 defenders is amenable (provided each of the joint defenders is 
 
 subject to the jurisdiction of some Sheriff Court). This 
 
 assimilates the practice of the ordinary Sheriff Court to that of 
 
 the Small Debt Court. Possible abuse of this privilege is 
 
 guarded against by investing the Sheriff, before whom the 
 
 case is first brought, with a discretionary power to remit the 
 
 case to the sheriffdom of any of the other defenders, if from 
 
 the nature of the case, or from consideration of probable cost, 
 
 or convenience of parties and witnesses, or for any reason, he 
 
 thinks this desirable. 
 
 Appendix, s. 6 (o), Rule 19. 7 Ed. VII. c. 51, s. 6 (a), Sch. 
 
 52 & 53 Vict, c. 26. s. 3. I., Rule 19. 
 
 2 & 3 Geo. V. c. 28, Sch. I. 
 
 171. The enactment of 1907 was so broadly expressed as to 
 
 suggest the possible reading that a person was liable to be 
 
 sued in a Sheriff Court in Scotland merely because he was a 
 
 joint obligant with others who resided in Scotland, although 
 
 lie himself might not be subject to the jurisdiction of any 
 
 Sheriff Court at all. This would have been introducing a new 
 
 ground of jurisdiction, and a statute never does that by 
 
 implication. The evident intention of the enactment of 1907 
 
 was merely that several defenders, all of whom were subject 
 
 to the jurisdiction of some Sheriff Court in Scotland, might 
 
 all be sued jointly in a Sheriff Court within whose jurisdiction 
 
 any one of them resided, provided, of course, that a cause of 
 
 action existed of a nature competent in the Sheriff Court. All 
 
 doubt on this subject has been removed by the alterations on 
 
 this clause effected by the Sheriff Courts Act, 1913. 
 
 Appendix, s. 6 (a). Neilson-Sproul v. Macintyre, &c, 
 
 7 Ed. VII. c. 51, s. 6 (a). 1910, 26 S.C.R. 259. 
 
 2 & 3 Geo. V. c. 28, Sch. I. 
 
 172. Upon section 6 (a) of the Sheriff Courts Act, 1907, 
 the question has been raised whether the rule that all the 
 joint defenders must be subject to Scottish jurisdiction suffers 
 an exception in the case of a body of trustees, one of whom 
 resides within a sheriffdom, and against none of whom there
 
 JOINT DEFENDERS. 75 
 
 is a formal conclusion, but who are sued only in their official 
 capacity as trustees. It lias been suggested that where one 
 of two trustees resided within a sheriffdom, and the other 
 
 was furth of Scotland, they might both be sued in the Sheriff 
 Court of the Scotch resident. The idea at one time prevailed 
 that executors in their official capacity were subject to the 
 jurisdiction of a Sheriff Court, because confirmation had issued 
 from it, although none of the defenders were as individuals 
 subject to that jurisdiction. This idea was negatived a 
 quarter of a century ago in the case of Halliday. On the 
 other hand, the Court, ten years later, in Thompson s case, 
 sustained jurisdiction against two trustees, one of whom was 
 furth of Scotland; but that was an action by a feuar against 
 the superiors of lands which lay within the sheriffdom, and 
 the main ground of judgment seems to have been that the ease 
 directly arose out of the administration of land situated within 
 the sheriffdom. The matter is not free from difficulty, but, 
 as has been said, jurisdiction is never conferred by implication, 
 and if jointly-liable individuals do not fall within section 
 G (a) unless they are all subject to the jurisdiction of some 
 Sheriff Court, there seems no reason why the same principle 
 should not apply to a body of trustees, so that it does not 
 appear to be competent to convene in a Sheriff Court process 
 trustees who are resident furth of Scotland, unless each trustee 
 called has, in some way, become subject to the jurisdiction of 
 a Sheriff Court. 
 
 Appendix, s. 3 (o), 6 (o). Cathcart v. Scott, 1908, 25 S.C.R. 
 
 Halliday v. Halliday's Execu- 16. 
 
 tors, 1886, 14 R. 261. Aston v. Barclay, 1912, 29 
 
 Thompson v. Wilson's Trustees, S.C.R. 10. 
 
 1895, 22 R. 866. 
 
 3. Carrying on Business. 
 
 173. A person (which includes a corporation or firm) who 
 carries on business within a sheriffdom is subject to the juris- 
 diction of the Courts of that sheriffdom. This is a statute- 
 created domicile of citation, and applies only " w here the 
 "defender carries on business, and has a place of business 
 " within the jurisdiction, and is cited either personally or at 
 " such place of business." The mode of effecting service at 
 a place of business is similar to that at a dwelling-place. 
 Appendix, s. 6 (6). 7 Ed. VII. c. 51. s. 6 (6).
 
 76 GROUNDS OF JURISDICTION. 
 
 174. This ground of jurisdiction is not in substitution for, 
 but in addition to, that ratione domicilii. A defender may be 
 sued either at his dwelling-house, or at his place of business, 
 if both are within Scotland; but he may also be sued and 
 cited at his place of business, although he have no dwelling 
 place within Scotland. A company cannot, of course, have a 
 dwelling place, and in practice the place of business of a firm 
 has long been regarded as its domicile of citation. 
 
 Appendix, s. 6 (6). Hughes v. Stewart, 1907, S.C. 
 
 7 Ed. VII. c. 51, s. 6 {b). 791. 
 
 175. The business domicile in its present aspect was a statu- 
 tory creation, first introduced by the Sheriff Courts Act, 1876. 
 Even prior to that, however, the common law recognised this 
 jurisdiction to a limited extent, but not upon the mere 
 geographical fact of the existence of a business address. The 
 principle was rather ratione contractus, which made a party 
 having a place of business in a sheriffdom liable to be sued 
 there, but only in actions relating to matters arising within 
 that sheriffdom. 
 
 39 & 40 Vict. c. 70, s. 46. Young v. Livingstone, 1860, 22 
 
 Ritchie v. Wilson, 1828, 6 S. D. 983. 
 
 552. Harris v. Gillespie, 1875, 2 R. 
 
 Hunter v. Fairweather, 1837, 15 1003. 
 
 S. 693. 
 
 176. The Sheriff Courts Act of 1876 broadened the business 
 domicile jurisdiction very considerably. If a defender (a) 
 carried on a trade or business within a sheriffdom, and (b) had 
 a place of business w T ithin the sheriffdom, and (c) was cited 
 at his place of business, or, personally, he became liable to 
 the jurisdiction of the Courts of that sheriffdom, not merely 
 in actions arising there, but " in any action," and that " not- 
 " withstanding that he has his domicile [i.e., his dwelling 
 " place] in another county." 
 
 39 & 40 Vict. c. 70, s. 46. 
 
 177. The somewhat ambiguous terms of the 1876 enact- 
 ment, and the fact that the statute of that year contained no 
 general clause repealing inconsistent prior legislation, created 
 dubiety as to its scope and meaning, for it appeared to contem- 
 plate only the case of a defender who resided in Scotland, but 
 in a different sheriffdom from his place of business. Although,
 
 CARRYING ON BUSINESS. 7 7 
 
 in practice, the 187G Act received in most Sheriff Court 
 broad interpretation, it was certainly expressed as applying 
 only to the case of a Scotch domiciled defender, and did aol 
 appear to include foreigners. The service was to be made " a1 
 " /lis place of business," and in the case of companies with 
 several places of business doubts arose as to what places of 
 business could be relied upon as founding jurisdiction within 
 the statute. In the case of railway companies in particular, 
 this doubt was emphasised by the fact that the Companies 
 Clauses Act and the Railway Clauses Act of 1845 had both 
 recognised that a railway company might have more than one 
 principal place of business where writs might be competently 
 served. Some obiter dicta of Lord President Inglis, in the 
 case of Jack in 1885, had also lent countenance to the view 
 that a possible meaning of " his place of business " in the 
 1876 Act was, in the case of railway companies, " a principal 
 " place of business " only. 
 
 39 & 40 Vict. c. 70, s. 46. Marshall v. Caledonian Railway 
 
 Jack v. North British Railway Company, 1900, 2 F. 704. 
 
 Company, 1885, 12 R. 1029. M'Laughlin v. Dumbarton Steam- 
 
 boat Company, 19 S.C.R. 270. 
 
 178. The 1876 provision was, however, specifically repealed 
 by the Sheriff Courts Act, 1907, which also repealed all incon- 
 sistent prior statutes, and the doubts which arose upon the 
 1876 enactment have been dispelled by the unambiguous terms 
 of the Act of 1907. All reference to the defenders' residence 
 has been omitted, and the place of business which grounds 
 jurisdiction is identified as that where the action is brought 
 and served. When a defender (a) carries on business within 
 a sheriffdom; (b) has a place of business within thai sheriffdom : 
 and (c) is cited personally, or at such place of business, he 
 becomes liable to the jurisdiction of the Courts of that 
 sheriffdom, quite irrespective of where his residence may be, 
 and, indeed, quite irrespective of whether he has a Scotch 
 residence at all. There is no room now for considerations 
 whether the place of business is a principal or a subordinate 
 one, or whether the action relates to matters arising within 
 the sheriffdom. The only requirement is the geographical one 
 that defender has a place of business situated within the 
 sheriffdom. As the matter now stands, therefore, any defender, 
 individual or corporate, may be sued in any sheriffdom where 
 the defender has any place of business, subject only to the
 
 78 GROUNDS OF JURISDICTION. 
 
 condition that the defender actually carries on business, and 
 that the defender is cited personally, or at that place of. 
 business. 
 
 Appendix, s. 6 (b), Rule 11. Hughes v. Stewart, 1907, S.C. 
 
 7 Ed. VII. c. 51, s. 6 (b). 791. 
 
 Harris r. Gillespie, 1875, 2 R. Hay's Trustees v. London & 
 
 1003 North-Western Railway Com- 
 
 pany, 1909, S.C. 1074. 
 
 179. The expression used in the 1876 Act was " trade or 
 "business" — an expression which lent countenance to the 
 narrow view that the intention of that Act was to limit the 
 jurisdiction to traders, although the Courts, as a rule, took a 
 broader view. The 1907 Act describes a defender who may- 
 be sued simply as one who " carries on business," a definition 
 not capable of misconstruction, and clearly including a 
 professional man, or farmer, and every corporation or firm 
 engaged in any business of any kind within the sheriffdom. 
 
 Appendix, s. 6 (6), Rule 11. 7 Ed. VII. e. 51. s. 6 (b). 
 
 180. There is a possible question as to the meaning of 
 " business." That question has already been the subject of 
 judicial consideration, and it may now be taken as established 
 that the business which the statute contemplates is that 
 conducted by a defender in his personal capacity, or by a firm 
 for themselves, and that persons conducting business in a 
 merely fiduciary or official character are not persons carrying 
 on business in the sense of the Sheriff Courts Act. 
 
 Ferguson v. Dyer, 1882, 9 R. Laidlaw v. Provident Insurance 
 
 671. Company, 1890, 17 R. 544. 
 
 Halliday's Executor v. Halli- Roberts v. Provincial Homes In- 
 
 dav's Executors, 1886, 14 R. vestment Company, Limited, 
 
 251. 1906, 44 S.L.R. 76. 
 
 4. Arrestment ad Funoandam Jurisdictionem. 
 
 181. Jurisdiction founded upon arrestment is, as regards 
 the Sheriff Court, statutory, although the principle underlying 
 it has long been recognised in the law of Scotland and of 
 other commercial countries. It is a principle of expediency, 
 perhaps, mtlier than of strict law, and was originally intended 
 to promote the ready enforcement of commercial contracts. 
 It applies generally where a defender has no domicile in 
 Scotland, and is in the eye of the law of Scotland " a
 
 ARRESTMENT AD FUNDANDAM JURISDICTIONEM. 7!) 
 
 "foreigner," but has moveable property of any description 
 
 within Scotland. 
 
 Appendix, s. 6 (c). 7 Ed. VII. c. 51, s. 6 (c). 
 
 L82. Although the actual action against a foreigner was 
 
 formerly not itself competent in tlie Sheriff Court, the laying 
 
 of a foundation tor it lias always been competent in the Sheriff 
 
 Court. Letters authorising arrestment ad fundandam juris- 
 
 dictioncm were issued by the Sheriff as judge ordinary of the 
 
 locality where the property proposed to be a nested was 
 
 situated. The action founded upon that arrestment, however, 
 
 had to be brought in the Court of Session, unless it was a 
 
 maritime cause, which was made competent in the Sheriff 
 
 Court in 1838. 
 
 1 & 2 Vict. c. 119, s. 22. White r. Spottiswoode, 1846, 
 
 Ersk. I. 2, 19. 8 D. 952. 
 
 183. In 1877 the Sheriff Court jurisdiction in this respect 
 was made concurrent with that of the Court of Session, but 
 only if the subject arrested were a ship or vessel. In practice 
 this was made use of in the Sheriff Courts only in proper 
 maritime causes, although its operation was not necessarily 
 limited to these, for the statute applied in the case of " any 
 " action " which would have been competent in the Sheriff 
 Court, had the defender been a Scotsman subject to its 
 jurisdiction. 
 
 40 & 41 Vict. e. 50 s. 8 (4) 
 
 181. The provision of the 1877 statute was expressed as 
 
 applicable to "any action against a foreigner." A " foreigner " 
 
 was not defined, but in practice was recognised as meaning 
 
 any person who was not otherwise subject to the jurisdiction 
 
 of the Scottish Courts, whatever his nationality. The Sheriff 
 
 Courts Act, 1907, in express terms sanctions the interpretation 
 
 which had been generally accepted, and makes amenable to 
 
 this jurisdiction every " person not otherwise subject to the 
 
 "jurisdiction of the Courts of Scotland," a definition which 
 
 includes, of course, defenders in England or Ireland. 
 
 Appendix, s. 6 (c). Tasker v. Grieve, 1905, 8 F. 45. 
 
 7 Ed. VII. c. 51, s. 6 (c). 
 
 185. The Sheriff Courts Act, 1907, also broadened the scope 
 of the arrestment jurisdiction, by repealing the 1877 enactment
 
 80 GROUNDS OF JURISDICTION. 
 
 limiting- the arrestable subject to ships, and making it 
 
 competent to arrest not only " a ship or vessel of which the 
 
 " defender is owner or part owner or master, but also 
 
 " goods, debts, money, or other moveable property belonging 
 
 " to him," but the arrestment warrant does not warrant a ship 
 
 which has left the harbour being followed and brought back. 
 
 The Sheriff Court jurisdiction on this ground, therefore, is 
 
 now concurrent with that of the Court of Session in every 
 
 respect, except that, for the Court of Session, the subject may 
 
 be situated, and may be arrested, anywhere within Scotland, 
 
 whilst, for the Sheriff Court, the subject arrested must be 
 
 within the sheriffdom at the time of arrestment. 
 
 Appendix, s. 6 (c). Carlberg v. Borjesson, 1877, 5 R. 
 
 7 Ed. VII. c. 51, s. 6 (c). 188, 390. 
 
 186. Arrestment is competent to the limited effect of 
 warranting an action of constitution against a party not himself 
 subject to the jurisdiction of the Court, in his character of 
 executor of a deceased person who also was not subject to the 
 jurisdiction. Thus, a creditor of a debtor domiciled in 
 England, and who has died in England, leaving an executor 
 also in England, may arrest, within a Scottish sheriffdom, 
 property there situated belonging to the deceased debtor, but 
 that for the purpose, and to the effect, only of obtaining a 
 decree of constitution of his debt. 
 
 Forrest v. Forrest, 1863, 1 M. 806. 
 
 187. An arrestment used to found jurisdiction is a 
 preliminary diligence, for the special purpose only of making 
 the defender subject to the jurisdiction of the Court. Its 
 purpose is served when the execution of arrestment has been 
 returned by the officer and service of the following action has 
 been effected. The arrestment ad fundandam jurisdiction mi 
 does not place a nexus on the property, to the same effect as 
 an arrestment on the dependence of an action, or an arrestment 
 in execution of a decree. If it is desired to retain the arrested 
 property within the jurisdiction of the Sheriff Court where it 
 has been found, a warrant to arrest on the dependence should 
 be craved in the initial writ, and the property attached under 
 that warrant. 
 
 North v. Stewart, 1890, 17 R. Stillie's Trustees v. Stillie, 1898, 
 
 (H.L.) 60. 6 S.L.T. 222. 
 
 Craig v Brunsgaard Kjosternd, Hope v. Derwent Mill Company, 
 
 1896, 23 R. 500. 1905, 7 F. 837. 
 
 Leggat v. Gray, 1908, S.C. 67.
 
 ARRESTMENT AD FUNDANDAM JURISDICTK >NEM. 81 
 
 188. Any moveable property which might competently be 
 arrested in execution of a decree is arrestable to found juris- 
 diction, but it must be property which is not elusory, and 
 which belongs to the defender personally, or which must be 
 accounted for to him. Private books and papers are uot 
 arrestable. At one time actual property only, not the symbol 
 of property, was regarded as a proper subject of arrestment 
 to found jurisdiction, but a contingent, and as yet unascer- 
 tained, debt is now recognised as arrestable. An arrestment 
 used in the bands of a Scotch limited company founds 
 jurisdiction in Scotland against foreigners who are registered 
 shareholders in the company, notwithstanding that at the 
 moment the arrestment is used there is no money due to 
 shareholders, in the shape of declared dividend or otherwise. 
 
 189. An arrestment ad fundandam jurisdictionem is per- 
 sonal to the defender against whom it is used, and falls by 
 his death. Moreover, it founds jurisdiction only for the par- 
 ticular action to enable which to be brought the arrestment 
 has been used. A subsequent action, even by the same pursuer, 
 requires a fresh arrestment. 
 
 Cameron v. Chapman, 1838, 16 Anderson v. Harboe, 1871, 10 
 
 S. 907. M. 217. 
 
 Goodwin v. Purneld, 1871, 10 M. 
 
 214. 
 
 190. An application for letters of arrestment is an ex parte 
 summary application, which requires no service, and which 
 is granted de piano. The initial writ, craving warrant for 
 letters of arrestment, strictly speaking, ought to disclose the 
 nature of the action proposed to be raised, because it might 
 be an action obviously incompetent in the Sheriff Court ; but 
 in practice a very general averment that the pursuer has a 
 competent cause of action against the defender, and that 
 defender has moveable property within the jurisdiction, is 
 accepted as sufficient, for letters of arrestment are gran ted 
 periculi petentis. 
 
 191. Arrestment of a ship founds jurisdiction against a 
 defender in a representative capacity. Thus, a foreign ship, 
 the owner of which may he unknown, may he attached, and 
 an action raised in the Sheriif Court, directed against the ship- 
 
 6
 
 82 GROUNDS OF JURISDICTION. 
 
 master as representing the owner, but not against any other, 
 as, for instance, a mortgagee in possession. But as regards 
 property other than maritime, the statutory enactment is 
 applicable only to property "belonging to" the defender 
 (not merely in his custody, as the ship is in the custody of 
 the shipmaster, although it is not his property). The statute 
 is more narrowly expressed, and is therefore to be more strictly 
 construed, when the subject of the arrestment is not a ship, 
 but goods, debts, money, or other moveable property. Such 
 property can only be arrested to found jurisdiction if without 
 any doubt defender is the sole owner in his own right, and 
 if the holder of the fund or subject is legally bound to make 
 payment or delivery to the defender. 
 
 Jones v. Samuel, 1862, 24 D. 319. Pollock v. Old Park Forge Com- 
 
 Clark v. National Bank, 1890, pany, 1907, 15 S.L.T. 3. 
 
 27 S.L.R. 628. Braby v. Danks, 1907, 15 S.L.T. 
 
 Heron v. Winfield, 1894, 22 R. 161. 
 
 182. Hurst Nelson v. Whatley, Ltd., 
 
 Whittall v. Christie, 1894, 22 R. 1912, S.C. 1041. 
 
 91. 
 
 192. Goods are not arrestable to found jurisdiction if the 
 goods themselves are in the hands of a person w r ho is more 
 than an agent or custodier for the owner, and has himself 
 some property title to the goods, as, for instance, it is very 
 doubtful whether it would be competent, in order to found 
 jurisdiction against the pledger, to arrest unredeemed goods 
 in the hands of a pledgee, who has made advances upon deposit 
 of the goods under a special contract, stipulating that, failing 
 redemption within a specified time, the pledgee becomes the 
 owner, and the redemption period has expired, although the 
 pledgee may not yet have had his forfeiture title judicially 
 declared ; or, in order to found jurisdiction against the hirer, 
 to arrest goods held by a person under a very common form 
 of suspensive-condition contract, known as a hire-purchase 
 agreement, whereby the holder and prospective owner has the 
 present possession and use of goods, and the option to become 
 their absolute owner, although he has not yet the actual legal 
 property title to them. 
 
 193. Arrestment ad fundahdam jurisdictionem is, of course, 
 inept if the action itself which is proposed to be raised is 
 incompetent in the Sheriff Court. The initial writ should 
 narrate the arrestment relied upon as creating jurisdiction, for
 
 ARRESTMENT AD FUNDA \ I >.\ M JURISDICTION EM. 83 
 
 the defender may plead invalidity of the arrestment process. 
 Such a plea, however, tnusl be stated as a plea in bar. A 
 defender who baa entered upon litiscontestation on the merit* 
 will not afterwards be allowed to plead that the arrestmenl ad 
 fundandam jurisdietionem was inept. 
 
 [nglia v. Robertson & Baxter, 1898, 25 R. (ILL.) 70. 
 
 194. An action is usually served immediately after arrest- 
 ment, and if the validity of the arrestment is challenged, this 
 is most conveniently done in that action. But it may happen 
 that the action is delayed, and an arrestee 1 may not reeonni^ ■ 
 that an arrestment ad fundandam jurisdictionem create- qo 
 nexus. The release of the arrestment may be of immediate 
 consequence to the defender, or to the arrestee. In that event, 
 application may be made for recall of the arrestment. The 
 Debtors Scotland Act, L838, authorised the Sheriff, who had 
 granted a warrant to arrest, to recall or restrict an arrestment 
 used in virtue of that warrant, and his judgment in an applica- 
 tion for recall of arrestment is subject to review of the Court 
 of Session. There is nothing in that statute which excludes 
 arrestment ad fundandam jurisdictionem from this recall 
 privilege. 
 
 1 & 2 Vict. c. 114, s. 21. Barclay. Curie v. Laing (1907), 
 
 S.C. 1908, 82. 
 
 195. Arrestment founds jurisdiction for " any action com- 
 " petent in the Sheriff' Court " against a foreigner whose move- 
 able property has been arrested within the sheriffdom. The 
 original object contemplated by this arrestment process was 
 probably mainly the recovery of debts. It has in practice 
 been regarded as a commercial rather than a universal form 
 of founding jurisdiction, and conflicting views still prevail 
 as to its scope. The express terms of the Sheriff Courts Act, 
 1907, which are quite unqualified, seem to make it clear that 
 upon arrestment may follow, not only a claim for money, but 
 an action of any kind which is now competent in the Sheriff 
 Court. 
 
 Appendix, s. 6 (c). Holt c. Holt, 1903. 25 S.C B 
 
 7 Ed. VII. c. 51, s. 6. 112. 
 
 19G. This preliminary arrestment is necessary only in the 
 case of a person who is not subject to the jurisdiction of the
 
 84 GROUNDS OF JURISDICTION*. 
 
 Scottish Courts at the time of the initiation of an action 
 againsl him. It does not apply to the case of a person who 
 was subject to the jurisdiction of the Courts when the action 
 was raised, but who has since ceased to be so. Thus, a 
 defender who lias bad a Scotch domicile, where he has been 
 sued, although lie lias since left and gone out of Scotland, 
 is liable to be called as defender in an action of furthcoming- to 
 make good arrestments, without the necessity of fresh arrest- 
 ment to ground jurisdiction, for the furthcoming, although 
 in form a separate process, is really a continuation of the same 
 judicial proceedings. 
 
 Burns r. Monro, 1844, 6 D. 1352. 
 
 197. There is no provision in the Sheriff Courts Acts, 1907- 
 1913, as to the time within which an action may be brought 
 in the jurisdiction to which a defender has been made subject 
 by arrestment ad fundandam jurisdictionem. An arrestment 
 on the dependence falls if the action is not served within 
 twenty-one days, but that does not apply to an arrestment to 
 found jurisdiction. The application for letters of arrestment 
 is a separate process, and when the warrant has been obtained, 
 the arrestment effected, and the execution returned, that 
 process is complete in itself. There seems no specific obligation 
 upon the user of the arrestment to bring his action within 
 any particular time, but he will act wisely if he follows the 
 usual practice of bringing it immediately after the arrestment. 
 Jurisdiction has been sustained for an action not served for 
 three months after the arrestment, and probably an action 
 would be regarded as timeously brought if served within a 
 year and day. 
 
 Appendix, Rule 127. Craig v. Brunsgaard Kjosternd, 
 
 Jacobs v. Scott, 1895, 2 S.L.T. 1896, 23 R. 500. 
 
 455. 
 
 198. An application for letters of arrestment is made at 
 common law to the Sheriff as judge ordinary of the bounds 
 within which is situated the property proposed to be arrested. 
 The warrant is granted without intimation or service. It is 
 executed in the same manner as a warrant to arrest on the 
 dependence, or in execution, but the officer's execution should 
 bear that it was made ad fundandam jurisdictionem. The 
 arrestment must have been executed, before an action upon it
 
 ARRESTMENT AD FUNDANDAM JURISDICTIONEM. 85 
 
 can be raised. The cost of arrestment ad fundandam jurisdic- 
 tionem is party and party expense in the action which follows 
 upon it. 
 
 Symington v. Symington, 1874, North v. Stewart, 1890, 17 R. 
 
 1 R. 1006. (H.L.) 60. 
 
 Smith v. Owners of " Crystal Wallace v. Toye, 1912, 28 B.C. R. 
 
 Spring," 1890, 7 S.C.R. 67. 50. 
 
 199. The fact that arrestment is now a means of founding 
 jurisdiction for all actions competent in the Sheriff Court, does 
 not infer that the letters of arrestment must necessarily issue 
 from the Sheriff Court, for letters of arrestment may also be 
 applied for in the Bill Chamber in the Court of Session, and 
 these letters will warrant arrestment to found jurisdiction for 
 an action to be brought in the Sheriff Court. 
 
 Maule v. Page, 1909, 47 S.L.R. Dickson r. Mitchell, &c, 1910, 
 
 110. S.C. 139. 
 
 5. Reconvention. 
 
 200. Although he may not be subject to the jurisdiction 
 of the Scottish Courts, and have no moveable property within 
 Scotland, there is another mode in which a foreigner may 
 render himself liable to be sued in the Sheriff Court. If he 
 himself brings an action in that Court, he thus renders himself 
 liable to the jurisdiction ex reconventione. The principle of 
 this is that a foreigner cannot avail himself of the Scottish 
 Court, by suing an action there, without also subjecting him- 
 self to its jurisdiction if his defender had a counter claim to 
 state. The foreigner need not necessarily have raised a sub- 
 stantive action. It is enough that he is a party in a process 
 pending before the Court, as, for instance, lodging a claim 
 in a bankruptcy process, or stating a defence by way of counter 
 claim in an ordinary action. Accordingly, a foreigner who 
 sues in any Sheriff Court is liable there to be sued. 
 
 201. It was doubted at one time whether the principle of 
 reconvention was not restricted in its operation to the Supreme 
 Court, but it has long in practice been recognised in the Sheriff 
 Court, that a foreigner suing in the Sheriff Court tor any 
 claim, may be made to answer there also for any counter claim 
 arising out of the contract sued on, or in eodem nccjotio, or 
 ejusJem generis. A counter action could not be entertained in
 
 86 GROUNDS OF JURISDICTION. 
 
 -t ho Sheriff Court it' the cause of thai cross action arose out of 
 a differed contract, or a different set of circumstances than 
 those of the leading action, nor could it be raised even in the 
 Court of Session if there were no contingency between it and 
 the leading- action. In the Sheriff Court the element of con- 
 fcingency lias now been eliminated, for the Sheriff Courts Act, 
 1907, expressly sanctions any cross action, without restriction 
 as to how it arose. The principle of reconvention there set 
 forth is that a pursuer, who is sued by a foreigner, is to have 
 exactly the same process-privilege against the foreigner as 
 that which the foreigner is operating against him. As the one 
 may sue in " any action," so may the other. 
 
 7 Ed. VII. c. 51, s. 6 (/i). Thomson v. Whitehead, 1862, 24 
 
 M'Ewan's Trustees v. Robertson, D. 331. 
 
 1852, 15 D 265. Longworth v. Yelverton, 1868, 7 
 
 M. 70. 
 
 202. Originally, reconvention applied only as between a 
 Scotsman and a foreigner, but the broad terms of the Sheriff 
 Courts Act, 1907, seem to make the principle operative also 
 as between Scotsmen in different sheriffdoms. A defender sued 
 in any sheriffdom may there set up any counter claim against 
 the party who is suing him, and that without serving a formal 
 action, for it is no longer necessary to state such counter claim 
 in a substantive action. It is sufficient to set it forth (in a 
 separate statement) in the defences in the leading action, and 
 when it is so stated the Sheriff is directed to " deal with it as if 
 " it had been stated in a substantive action." ]>ut. of course, 
 the defender's claim, whether stated in a substantive action, or 
 by way of counter claim, must be one of a nature which is 
 competent in the Sheriff Court. 
 
 Appendix, s. 6 (//), Rules 43, 55. Baillie v. Hume. 1852, 15 I). 267. 
 
 7 Ed. VII. c. 51, s. 6 (A) and 
 Sch. I., Rule 55. 
 
 203. The view prevailed at one time that jurisdiction 
 e.r reconventione existed so long as any step, however trifling, 
 remained to be taken in the original action, and a cross action 
 was regarded as timeously brought if the leading action had 
 not yet been extracted, or expenses decerned for. But whether 
 jurisdiction exists is in each case a question of circumstances. 
 The general consideration appears to be, are the actio conven- 
 tion is and the actio reconventions in such a position that decree 
 in the one could be set off against decree in the other, or could
 
 IlKCOXYKNTIOX. 7 
 
 they be conjoined and deaH with in one judgment? If the 
 Leading action has been practically disposed of, although it 
 may be technically still a pending process, jurisdiction ex 
 reconventione does not seem to exist. 
 
 Thompson v. Whitehead, 1862, Burst, Nelson, & Co., Ltd., v. 
 
 24 D. 331. Spencer Whatley, Ltd., 
 
 Allan r. Wormer, Barris, & Co., S.C. 1041. 
 
 1894, 21 R. 866. 
 
 6. Delict. 
 
 20-4. Another mode in which a person may become subject 
 to the jurisdiction of a Sheriff Court in Scotland is through 
 his personal delict. " Where the action arises out of the delict 
 "of the defender within the jurisdiction and he is personally 
 " cited there," he is liable to be sued there. Delict is a relative 
 term, which has a general and a legal meaning, but it is 
 thought to have been used in the Sheriff Courts Act, 1!)07, 
 in its broadest sense, and that what is meant is that a man is 
 not to be permitted to evade the consequences of his negligence 
 or fault or wrong-doing within Scotland, in matters civil, any 
 more than in matters criminal, on the plea that he is a 
 foreigner. Of course, the criminal law takes no cognisance 
 of nationality. A person found breaking the criminal law is 
 amenable to the criminal Court of the jurisdiction where the 
 crime is committed. The 1907 statute places him on the same 
 footing as regards civil matters. A foreigner, therefore, withoui 
 any preliminary arrestment to found jurisdiction being required, 
 may be cited personally to answer in the civil Court for delict 
 committed within a sheriffdom. If, for instance, a foreigner 
 attacks a person in Scotland, he may be dealt with under the 
 criminal law. But he is also liable under the civil lawto a claim 
 of damages for assault, and for that the foreigner must answer 
 in the local civil Court, if he is personally cited within its 
 jurisdiction. The same principle applies in actions arising out 
 of other forms of delict or quasi delict, such as slander actions, 
 actions of affiliation and aliment, and actions founded upon 
 personal fault or negligence, or breach of contract. 
 
 Appendix, s. 6 (/). Macleod v. Dobson, 1900, 16 
 
 7 Ed. VII. c. 51, s. 6 (t). S.C.R, 33, 104. 
 
 Kermick v. Watson, 1871, 9 Carrigan v. Philips, 1905, 21 
 
 M. 984. S.C.R. 335. 
 
 205. This ground of jurisdiction, it will be observed, is
 
 88 GROUNDS OF JURISDICTION. 
 
 conditional upon personal service, as distinguished from postal 
 service. To make a person, not otherwise subject to it, 
 amenable to the jurisdiction of a Sheriff Court, not only must 
 the action " arise out of the delict of the defender within the 
 "jurisdiction," but the defender must be "personal/;/ cited 
 " there." This condition formerly applied to jurisdiction 
 founded ex delicti, ratione contractus, and ratione rei sitae. In 
 the recent Sheriff Courts Acts this condition has been only 
 abrogated as regards the jurisdiction ratione rei sitae. It is 
 still maintained as regards the jurisdiction arising ex delicti or 
 ratione contractus. 
 
 Appendix, s. 6 (</) (f) (i). Davidson v. Gourlay, 1906, 22 
 
 7 Ed. VII. c. 51. s. 6 (d) (f) (i). S.C.R. 242. 
 
 Bird v. Brown, 1887, 25 S.L.R. 
 1. 
 
 206. Joint delinquents may be sued jointly and severally 
 if the action as laid against all of them arises out of the same 
 delict. But, of course, each defender must be served personally. 
 
 Caughie v. Robertson, 1897, 25 Fleming v. Gemmill, 1908. S.C. 
 
 R. 1. 340. 
 
 Sim v. Muir's Trustees, 1906, 8 Ellerman Lines v. Clyde Trustees 
 
 F. 1091. and Others, 1909, S.C. 690. 
 
 207. It is not made quite clear upon the express words of 
 the 1907 statute that section 6 (1) includes cases laid upon 
 quasi delict, as, for instance, the negligence of a servant. But 
 the common law has always recognised that there are some 
 forms at all events of quasi delict for which redress must be 
 found at the place where delict has been committed, and pro- 
 vided a defender is personally cited the rule may now be taken 
 to be that any person may be competently sued in the forum of 
 his delict, even if he have no domicile within that sheriff- 
 dom, or in Scotland. 
 
 Appendix, s. 6 (£). Henderson v. Muir, 1910, 26 
 
 Kermick v. Watson, 1871, 9 M. S.C.R. 158. 
 
 984. 
 
 7. Ratione rei sit.k. 
 
 208. A person who is owner, part owner, or tenant" of 
 heritable property situated within any sheriffdom is subject to 
 the jurisdiction of the Courts of that sheriffdom, although he 
 may not reside there, or have a place of business there. Even 
 if the owner of such property be a foreigner, no antecedent
 
 KATioNi-; i ; i : i sit.k. 89 
 
 arrestment process is necessary to render him Bubjed to the 
 jurisdiction. The fact of ownership of heritable property i- 
 of itself sufficient to create jurisdiction for all actions relating 
 to that heritable property. Formerly much doubl existed as 
 to the scope of this jurisdiction, and when a defender, although 
 a heritable proprietor within the sheriffdom, \v;is not personally 
 amenable to the jurisdiction of its Courts, personal conclusions 
 in an action were regarded as incompetent. The Sheriff Courts 
 Act, 1907, seems to make it clear that every kind of act inn 
 relating- to heritable property, which is competent in the Sheriff 
 Court, and which can be relevantly laid against a proprietor 
 of heritable property (except, of course, actions specially 
 excluded by statute) may be competently brought in the Court 
 of the district where the heritable property is situated. There 
 is no restriction in the statutory language as to the nature of 
 the action, if it "relates to such property or to his I the 
 "defender's) interest therein." 
 
 Appendix, s. 5 (4), 6 ((/). Stark's Trustees v. Cooper's 
 
 7 Ed. VII. c. 51, s. 5 (4), 6 (d). Trustees, 1900, 2 F. 1257. 
 
 M'Vey v. M'Knight, 1879, 7 R. Maxwell v. Horwood's Trustees, 
 
 225. 1902, 4 F. 489. 
 
 Pollokshaws Commissioners v. Love v. Love, 1907, S.C. 728. 
 
 M'Lean, 1899, 2 F. 96, 
 
 209. Even where the defender has his personal domicile 
 within another sheriffdom, actions relating to heritable 
 property may nevertheless be brought in the Sheriff Court of 
 the district within which the property lies. This was always 
 the practice as regards such actions as sequestration for rent, 
 poinding of the ground, removing, and the like. The Sheriff 
 Courts Act, 1877, when it extended Sheriff Court jurisdiction 
 to include actions relating to heritable property, made this 
 geographical restriction statutory. The Sheriff Courts Act, 
 1907, repeats this, and further appears to restrict the jurisdic- 
 tion to that of the district Court, if the action raises a question 
 of heritable right or title. 
 
 Appendix, s. 5 (4), Proviso 1. Culross Water District Com- 
 
 7 Ed. VII. c. 51, s. 5 (4). mittee v. Sligo Trustees, 1891, 
 
 Ersk. I. 2, 17. 19 R, 58. 
 Mount r. Lee, 1891, 18 R. 876. 
 
 210. The Sheriff Courts Act, 1907, also enlarged the 
 personality of the " defender," which term in an action relating 
 to heritage now includes "the owner or part owner, or tenant
 
 90 GKROTTNDS OF J UllISDICTIOX. 
 
 "or joint tenant, whether individually or as a trustee, of 
 "heritable property within the jurisdiction." The breadth 
 of (his definition of "owner," and the width of the correspond- 
 ing jurisdiction clause, which embraces all "actions relating 
 "in quest ions of heritable right and title," practically give 
 to the Sheriff Court of (ho district within which the heritable 
 property lies a jurisdiction equivalent to, and concurrent 
 with, that of the Court of Session. 
 
 Appendix, s. 5 (4), 6 {d). Buchan v. Grimaldi, 1905, 7 F. 
 
 7 Ed. VII. c. 51, s. 5 (4), 6 (eZ). 917. 
 
 Thorburn v. Dempster, 1900, 2 Love v. Love, 1907, S.C. 728. 
 F. 583. 
 
 211. Until 1877, no question, however paltry, relating to 
 heritable title could be entertained in the Sheriff Court. It 
 was competent there, however, to entertain a possessory action, 
 tli at is, an action in which no question of title arose, but only 
 of possession. If a party with an r,r facie title, or who at 
 least averred such a title, had been in possession for seven 
 years, the Sheriff could secure him in possession meantime, 
 but could not adjudicate upon the sufficiency of the title, still 
 less decide questions between competing claimants. In 1838 
 the first slight relaxation of this rigid rule appeared in the 
 extension of the jurisdiction of the Sheriff Court to questions 
 of nuisance and actions relating to servitude rights. It was 
 not, however, till 1877 that the Sheriff Court was invested 
 with any substantial heritable jurisdiction. The statute of 
 that year extended the Sheriff's jurisdiction to include actions 
 relating to heritage up to the value of £1000 or of the yearly 
 value of £50. There the matter remained till the Sheriff 
 Courts Act, 1907, abolished all restrictions, and made com- 
 petent all actions relating to questions of heritable right or 
 title (with the two exceptions of reduction and adjudication). 
 
 Appendix, s. 5 (4), 6 (d). Ersk. IV. 1-47. 
 
 1 & 2 Vict. c. 119, s. 15. Muirhead v. Gilmour, 1909, 46 
 
 40 & 41 Vict, c. 50, s. 8. S.L.R. 425. 
 
 7 Ed. VII. c. 51. s. 5 (4), 6 (d). 
 
 212. Certain clauses in the Sheriff Courts Act, 1907, are, 
 " so far as appropriate," made applicable to the Small Debt 
 Court. There, as in the Ordinary Court, for instance, 
 " tenant " includes sub-tenant, and there also an action, if 
 it is in its nature competent, lies againsl a defender who is 
 " owner, or part owner, or tenant, or joint tenant, whether
 
 RATION E RE] SIT.K. 91 
 
 " individually or as a trustee of heritable property within the 
 "jurisdiction, and the action relates to such property." Bui 
 the express enactment, including all questions relating to 
 heritable right and title within the jurisdiction of the Sheriff 
 
 Court, and the direction that such actions nmsl be raised in 
 the district Court where the property lies are qo1 amongst 
 those which are made applicable, and they are not appropriate, 
 to the Small Debt Court. The Small Debt Court jurisdiction, 
 therefore, as regaids the kind of action there competent, is 
 not affected at all by the Sheriff Courts Act, 1907, except thai 
 as regards competent actions which relate to heritable property, 
 the meaning of defender is somewhat widened. The Small 
 Debt statutes contain within themselves a process code for 
 sequestration for rent, for an amount within the Small Debt 
 limit. 
 
 Appendix, s. 3 (6), 5 (3), (4), 6 7 Ed. VII. c. 51. s. 45 (3) (6), 
 
 [0), 45. 5 (4). 6 (</). 
 
 1 Vict. c. 41, s. 1-5, 20. 
 
 213. In the Small Debt Court, accordingly, a claim relating 
 to heritable property is in the same position as a claim relating 
 to anything else. It is only competent if it can be stated as 
 a debt or demand, and it must follow the procedure of the 
 Small Debt Acts. An action of damages, for instance, may 
 be brought against a person having an interest in heritable 
 property, individually or as a trustee, or as part owner, or 
 joint or sub-tenant; but that is not necessarily an action 
 which, as in the case of an ordinary action relating to heritable 
 right or title under the Sheriff Courts Act, 1907, requires to 
 be raised in the sheriffdom or district where the property lies. 
 Under the Small Debt Act of 1837 an action is directed to be 
 brought " within the jurisdiction of which the defender shall 
 " reside, or to the jurisdiction of which he shall be amenable." 
 The defender in such an action, therefore, may be sued in the 
 Court of his domicile, although the property lies elsewhere. 
 If, however, he has no personal domicile, that is to say, has 
 no residence within the jurisdiction, then in the Small Debt 
 Court, as in the Ordinary Court, he may be amenable to the 
 jurisdiction ratione rei sitae. 
 
 Appendix, s. 5 (4), 45. 7 Ed. VII. c. 51, s. 5 (4), Pro- 
 
 1 Vict. c. 41, s. 26. viso 1. 
 
 '214. Jurisdiction ratione rei sitae is not limited to actions
 
 92 GROUNDS OF JURISDICTION. 
 
 relating to heritable property, although that is, the only aspect 
 of it upon which the Sheriff Courts Act, 1907, contains an 
 express enactment. Nothing- further in the way of express 
 enactment was necessary, for it is only as regards heritable 
 property that the Act makes any alteration in the law. The 
 situation of moveable property at common law has always 
 ruled the jurisdiction, in any action in which it was necessary 
 to deal with the actual property itself. That jurisdiction is 
 over the property, not over the defender, the cases in which 
 it is most commonly exercised being maritime subjects which 
 it is desired to safeguard, perishable goods which are lying 
 within the sheriffdom, and which it is obviously, in the interest 
 of all concerned, to have converted into cash, or goods or live 
 stock, the title to the proprietorship of which is in dispute, 
 but which are meantime incurring large storage or other 
 charges ; or goods unclaimed held by a custodier for behoof of 
 whom it may concern, and lying within the sheriffdom. 
 
 Bannatync v. Newendorff & Scottish Central Railway Com- 
 
 Berry, 1841, 3 D. 429. pauy v. Ferguson, 1863, 1 M. 
 
 Jones v. Samuel, 1862, 24 D. 319. 750. 
 
 8. Ratione Contractus. 
 
 215. A person not otherwise subject to the jurisdiction of 
 a Sheriff Court, may become so ratione contractus. The original 
 theory of this jurisdiction was that a foreigner who had made 
 a contract, soluble within Scotland, presumably agreed with 
 the other contracting party that legal questions relating to 
 that contract should be determined within Scotland, according 
 to Scols law. An action for this purpose lay in the Court of 
 Session, if the foreigner was personally cited within Scotland. 
 
 Ersk. I. 2, 20 Johnston v. Strachan, 1861, 23 D. 
 
 Sinclair v. Smith, 1860, 22 D. 769. 
 
 1475 Kermick v. Watson, 1871, 9 M, 
 
 984. 
 
 21G. The Sheriff Court also exercised this jurisdiction in 
 certain special circumstances, as where a contract had been 
 made within a sheriffdom, or where it was contracted to receive 
 effect there. Jurisdiction lay with the Sheriff Court to enforce 
 a contract to be performed wuthin the sheriffdom, and if the 
 defender had been personally cited within that sheriffdom, 
 although the contract itself had been made elsewhere. But
 
 RATION K CONTRACTUS. 93 
 
 in ;ni action of damages for non-fulfilment of a contract (nol 
 for its enforcement) it was doubtful whether the Sheriff of the 
 jurisdiction where the contract was made, bu1 within which 
 
 the defender had DO domicile, had jurisdiction. 
 
 Logan v. Thomson, 1859, 31 Jur. Pirie v. Warden, 1867, 5 M. 497 
 
 173. 
 
 217. The new definition of jurisdiction ratione contractus 
 
 in the Sheriff Courts Act, 1907, takes no account of where the 
 
 contract was made. The only element recognised is " the place 
 
 "of execution or performance" of the contract. If that is 
 
 within a sheriffdom, and the defender is personally cited there, 
 
 the Sheriff can entertain "any action" of a class competent 
 
 in the Sheriff Court which "relates to" the contract, whether 
 
 to declare its meaning, or for its enforcement, or for damages 
 
 for its non-fulfilment, or otherwise. In effect this assimilates 
 
 the Sheriff Court jurisdiction ratione contractus to that of the 
 
 Court of Session, except that, for the Court of Session, citation 
 
 of the defender within Scotland, is sufficient, but for the Sheriff 
 
 Court the defender must be personally cited not only within 
 
 Scotland, but also within the sheriffdom. 
 
 Appendix, s. 6 (/"). Johnston v. Strachan, 1861, 23 
 
 7 Ed. VII. c. 51, s. 6 {f). D. 758. 
 
 Sinclair v. Smith, 1860, 22 D. Robertson v. Neely, 1895, 12 
 
 1475. S.C.R. 182. 
 
 218. The wide expression, " relates to a contract," might 
 perhaps be construed as covering actions by other parties than 
 the contractors, as, for instance, an action by an interested 
 third party seeking to interdict a contract being operated ; 
 but, having regard to the previous law, and to the principle 
 that new jurisdiction can only be created by express enactment . 
 it is thought that this statutory provision can only reasonably 
 be read as applying to questions between the contracting parties 
 themselves, arising out of their contract. 
 
 9. Citation. 
 
 219. Several of these grounds of jurisdiction depend upon 
 personal citation of the defender within the sheriffdom. Per- 
 sonal citation means the actual placing in the hands of defender 
 of the service copy of the writ. It is, of course, possible that 
 sending a service copy by post may be the mosl Likely mode 
 of causing the writ to reach the defender's own hands, but
 
 94 GROUNDS OF JURISDICTION. 
 
 that is not personal service. Whether service has been made 
 personally, thai is to say, whether the service copy of the writ 
 has reached defender personally, not merely has reached his 
 dwelling-place or his place of business, is not a matter for 
 inquiry by proof, but is a matter to be determined from the 
 execution of citation; so that, where the existence of juris- 
 diction is conditional upon personal service, that service can 
 be validly effected only by an officer. 
 
 Bird v. Brown, 1887, 25 S.L.R. Davidson v. Gourlay, 1906, 22 
 
 1. S.C.R. 242. 
 
 10. Prorogation. 
 220. A person not subject to the jurisdiction of the Sheriff 
 Court may nevertheless elect to make himself subject to it, 
 by prorogating jurisdiction. But, of course, he cannot thereby 
 make competent in the Sheriff Court any action which is 
 otherwise incompetent, for prorogating jurisdiction only means 
 waiving a litigant's personal right to object to being sued in 
 that Court. It does not remedy or remove a radical incom- 
 petency. Tf the action is not competent in the Sheriff Court, 
 then the Sheriff cannot entertain it, however willing both 
 parties may be to waive all objections and prorogate 
 jurisdiction. 
 
 Appendix, s. 6 (j). Wylie v. Heritable Securities 
 
 7 Ed VII. c. 51, s. 6 (;'). Investment Company, 1871, 10 
 
 Ringer v. Churchill, 1840, 2 D. M. 253. 
 
 307. 
 
 221. There is no prescribed form for a defender prorogating 
 jurisdiction. It may be evidenced by a formal minute, or by 
 an endorsation on the initial writ signed by defender or his 
 agent; probably jursidict ion would be held to be prorogated by 
 the mere fact that a defender, who might object to it, does not 
 do so, and appears to plead the merits of the cause. A defender 
 who elects to prorogate a jurisdiction usually is also willing 
 to accept service, and the most common form is to embody the 
 prorogation and the acceptance of service in one docquet. The 
 effect of prorogating jurisdiction is to put the defender in 
 every respect in the same position as if he had been in fact 
 subject to the jurisdiction, upon one or other of the qualifying 
 grounds. 
 
 White v. Spottiswood, 1846, 8 Assets Company, Ltd., v. Falla, 
 
 D. 952. 1894, 22 R. 178. 
 
 Longmuir v. Longmuir, 1850, 12 Mitchell v. Stewart, 1907, 14 
 
 D. 926. S.L.T. 685.
 
 CHAPTER IV. 
 THE LITIGANTS. 
 
 1. General. 
 
 222. The Sheriff Court may entertain an action at the 
 instance of any person, whether a Scotsman or a foreigner, 
 but it is competent in the Sheriff Court to sue a defender only 
 if the defender is, upon one or other of the grounds just dis- 
 cussed, liable to the jurisdiction of that sheriffdom. There are, 
 however, some personal disabilities which may, either abso- 
 lutely or conditionally, prevent persons suing, or prevent their 
 being sued, even where the Court has a normal jurisdiction. 
 
 2. Outlaw. 
 
 223. No person who has been placed beyond the pale of 
 the law can either sue or defend an action in any civil Court. 
 A person under sentence of death, and who is thus civilly dead, 
 caii neither be a pursuer nor a defender. Neither can a person 
 who has been outlawed, unless and until he be reponed. But 
 a person who has been convicted of crime, although he may be 
 temporarily in prison, does not necessarily lose his legal right 
 to invoke the aid of the civil Courts. 
 
 Ersk. II. 5, 60. M'Crae v. Hvndman, 1836, 9 
 
 Jur. 28. 
 
 3. Convict. 
 
 224. A person who has been sentenced to penal servitude, 
 and removed to a convict prison, even for a lengthened period, 
 has, nevertheless, a title to sue, and may be sued; but whether 
 he should be sued in the jurisdiction of his domicile, or that of 
 the prison, depends upon the circumstances. The provision 
 of the Sheriff Courts Act, 1907, continuing the domicile juris- 
 diction for a period of forty days after a person has left it, dots
 
 96 THE LITIGANTS. 
 
 not apply to the case of a convict, because liis residence in 
 Scotland is known. Hut a convict does not necessarily lose 
 bis domicile merely because he is temporarily removed from 
 ii to a prison, if the place still remains Lis home, to which, 
 after undergoing his term of imprisonment, he probably will 
 return. If his wife and family, for instance, continue to 
 reside there during the convict's absence, the place remains his 
 domicile, and he may still be sued in the Sheriff Court of his 
 domicile, and cited at his domicile in the ordinary way, 
 although, if the fact that the defender is in prison is disclosed 
 mi the face of the writ, or is brought to the knowledge of the 
 Court, the pursuer would probably be ordered, in addition to 
 ordinary service, to notify the defender through the governor 
 of the prison. If a defender might be prejudiced in conducting 
 a defence by his being in prison, the Court would probably 
 also sist the action till his release, unless the matter were 
 very urgent. Where, however, the convict had no home when 
 arrested, or his family home had been broken up after his 
 conviction, it is thought that a convict should be sued in the 
 sheriffdom where his prison is situated. That his residence 
 there is not his voluntary selection does not alter the fact that, 
 for the time being 1 , it is his residence, and it is the fact of 
 residence, not the reason why, which alone determines the 
 domicile for citation purposes. 
 
 4. Bankrupt. 
 
 225. A person who is not placed without the pale of the 
 law, and is not in durance, may, nevertheless, by operation of 
 law, be for the time being deprived of his legal status, and so 
 disentitled to sue or defend an action. Thus, in bankruptcy, 
 claims against debtors are enforced at the instance of the 
 trustee, not of the bankrupt ; and claims by creditors are estab- 
 lished in the manner prescribed by the bankruptcy statutes, 
 not by action against the bankrupt. An action, however, 
 which is pending at the date of the bankruptcy may be con- 
 tinued in name of the bankrupt if, after being afforded an 
 opportunity of sisting himself, the trustee declines to do so, 
 or an action may be raised by a bankrupt in special circum- 
 stances, but as a condition of either permitting a pending 
 action to be continued, or a fresh action to be pursued, in name 
 of a bankrupt, the Court may require him to find caution for
 
 BANKRUPT. 97 
 
 expenses; whether he will be ordered to do so is always a 
 question of circumstances. The general rule may he staled 
 to be that a bankrupt is not permitted to indulge in the luxury 
 of li< ig-ation, without finding caution for costs, which, in Ihe 
 case of a depending- action, includes costs, both past and future, 
 unless the action is one affecting the bankrupt's personal 
 character, or relating to a claim personal to the bankrupt, in 
 which his creditors have no interest. 
 
 Horn v. Sanderson, 1872, 10 M. Stewart v. Gordon, 1891, 19 R. 4. 
 
 295. Gilmdur v. Donelly, 1899, 7 
 
 Frazer v. Mackenzie, 1874, 12 S.L.T. 267. 
 
 S.L.R. 74. Douglas v. M'Kinlay, 1902, 5 F. 
 
 Clark v. Muller, 1884, 11 R. 418. 260. 
 
 226. Even if the cause of action has arisen after the date 
 of bankruptcy, if the bankrupt has not yet been discharged, 
 it may be pled against him that he is not entitled to sue in his 
 own name without finding caution for expenses, and unless 
 he sues with the concurrence of the trustee in bankruptcy 
 this plea would probably be sustained, unless the action is 
 personal to the bankrupt or is directed against the trustee 
 himself, as, for instance, where a bankrupt sues his trustee to 
 account for an alleged reversion upon his estate. 
 
 Ritchie v. M'Intosh, 1881, 8 R. Drew v. Robertson, 1903, 11 
 
 747. S.L.T. 31. 
 
 Cooper v. Frame, 1893, 20 R. 
 
 920. 
 
 227. A trustee in bankruptcy, who sists himself in an 
 action initiated by the bankrupt, must do so unconditionally, 
 and accept the whole liability of a pursuer, including liability 
 if unsuccessful for the expenses of the litigation from its 
 initiation. If a counter claim larger than that sued for has 
 been stated by way of defence, the trustee accepts the risk of 
 its being established, in which case, if the defender gets decree 
 for the difference, he will rank as a creditor therefor. A 
 trustee may be held personally liable in expenses. In this 
 event, decree must be moved for against him personally, as 
 well as qua trustee. 
 
 228. A party pleading bankruptcy, as in bar of an action, 
 must do so as a preliminary plea. If he do not, and pleads a 
 defence on the merits, he is held to have waived this plea in 
 bar. If the bankruptcy occur during the dependence of an 
 
 7
 
 98 THE LITIGANTS. 
 
 action, a motion for caution, or that the trustee be sisted, 
 should be made at once. If the other party go on, in know- 
 Ledge of the bankruptcy, without so moving, he will not 
 afterwards be heard to plead the bankruptcy. Official bank- 
 ruptcy creates disability to sue. Mere poverty, or even mere 
 insolvency, does not necessarily do so, but where a litigant has 
 divested himself of his whole estates, he will probably be 
 required to find caution for expenses. 
 
 Burnett v. Murray, 1877, 14 Thomson v. North British Rail- 
 
 S.L.R. 616. way Company, 1882, 9 R. 1102. 
 
 Macdonald v. Simpson, 1882, 9 Johnston v. Dryden, 1890, 18 R. 
 
 R. 696. 191. 
 
 5. Married Woman. 
 
 229. As a general rule, a married woman may not sue 
 
 or be sued in her own name. Her husband must be conjoined 
 
 in the instance as her curator, unless in actions of separation 
 
 and aliment, or other actions where the husband is himself 
 
 the defender, or where the whereabouts of the husband are 
 
 not known, or it is proved that his consent cannot be obtained, 
 
 or the action relates to the wife's separate estate, from which 
 
 the husband's rights are excluded by convention or statute. 
 
 24 & 25 Vict. c. 80. Wilkinson v. Bain, 1880, 8 R. 
 
 40 & 41 Vict. c. 29. 72. 
 
 44 & 45 Vict. c. 21. M'Quillian v. Smith, 1892, 19 R. 
 
 Gray v. Hamilton, 1840, 2 D. 375. 
 
 1205. Watt v. Moffat, 1911, 27 S.C.R. 
 
 Biggart v. City Bank, 1879, 6 356. 
 
 R. 470. 
 
 230. A married woman living separate from her husband, 
 and carrying on a business, or possessing property in her own 
 right, may, however, sue or be sued in relation thereto, without 
 her husband being a party, the circumstances warranting her 
 so suing, or being sued, being set forth in the initial writ. 
 
 Gifford v. Rennie, 1853, 15 D. 451. 
 
 231. A married woman may sue an action for vindication 
 of her character at her own instance, if her husband refuse to 
 concur, but if a married woman is sued for defamation, her 
 husband should be called for his interest. 
 
 Smith v. Stoddart, 1850, 12 D. 1185. 
 
 232. Although a married woman may have an interest, she
 
 MARRIED WOMAN. 
 
 has not a title, to sue alone an action in which her husband has 
 also an interest, as, for instance, if the husband is alive, she 
 cannot sue alone for reparation for the death of a child. 
 
 Barrett v. North British Rail- Aitken v. Gourlay, 1903, 5 F. 
 
 way Company, 1899, 1 F. 1139. 5&5. 
 
 233. When a husband is, through disability, natural or 
 legal, incapable of giving his consent (as, for instance, a 
 lunatic or a convict), or where he refuses his consent, a wife 
 may be permitted to sue in her own name, a curator ad litem 
 being appointed if necessary. 
 
 Ersk. I. 6, 21. Bain v. Shand, 1833, 11 S. 688. 
 
 234. The occurrence of the bankruptcy of a concurring 
 husband in a depending action, in which the wife is the prin- 
 cipal pursuer, and the husband has no personal interest, but is 
 only a concurrent, does not entitle the other party to require 
 caution from pursuers as a condition of continuing the action. 
 
 Willox v. Farrel, 1849, 21 Jur. 478. 
 
 6. MlNOE. 
 
 235. Pupils cannot in general sue alone. An action in the 
 interest of a pupil is sued in name of his father if alive, or 
 his mother if the father is dead, or his tutors if he have any. 
 If not, the action is brought in the pupil's name, and the Court 
 will appoint a tutor ad litem. Similarly a pupil cannot be 
 sued, without calling his father or tutors, and, if there are 
 none, the Court will appoint a tutor ad litem. 
 
 Appendix, Rule 14. Ross Trustees , 1894, 21 R. 
 
 7 Ed. VII. c. 51, Rule 14. 995. 
 
 Cunningham v. Smith, 1880, 7 Carrigan v. Cleland, 1907, 15 
 
 R. 424. S.L.T. 543. 
 
 236. An action by a minor, above the age of puberty, is 
 sued in name of the minor, with concurrence of his curator at 
 law. If there be none, the Court will, if necessary, appoint a 
 curator ad litem. In like manner a minor may be sued in 
 his own name, but his curators should be called. If he have 
 none, the Court will appoint a curator ad litem. 
 
 237. When the appointment of a tutor or curator ad litem 
 is necessary, the Court will appoint one, although neither party
 
 100 THE LITIGANTS. 
 
 move for it. lie is appointed only for a particular process, 
 not to act generally. He is not required to find caution, and 
 he is not personally liable for expenses, unless, in special 
 circumstances, lie may be personally responsible for illegal 
 or nimious proceedings. 
 Ersk. I. 7 : 13. 
 
 238. A minor is not to be forced into litigation merely by 
 
 the other parties procuring the appointment of a curator ad 
 
 litem. The minor must not be prejudiced when he becomes 
 
 major, and so the Court must be reasonably satisfied, before 
 
 appointing a curator, that the minor has elected to litigate, 
 
 and is not being forced into a litigation. 
 
 Sinclair v. Stark, 1828. 6 S. 336. Mackenzie's Trustees v. Mac- 
 
 Calrlerhead's Trustees v. Fyfe, kenzie, 1908, S.C. 995. 
 
 1832, 10 S. 582. 
 
 239. If a minor's father, or tutors, or curators are 
 unknown, service is made upon his tutors and curators 
 edictally, and this is declared by the Sheriff Courts Act, 1907, 
 to be " good and sufficient service on the minor for every 
 " purpose of law." 
 
 Appendix, Rule 14. 7 Ed. VII. c. 51, Rule 14. 
 
 240. If a defender pleads that he is a minor, the action is 
 not dismissed, but is intimated to the defender's father or 
 curator. If he decline to sist himself, the Court may appoint 
 a curator ad litem. Formerly, it was necessary to bring a 
 supplementary action against the curator, but, as the addition 
 of parties is amongst the amendments sanctioned by the Sheriff 
 Courts Act, 1907, a curator desiring to sist himself may by 
 order of Court be included in the instance. 
 
 7. Insane Person. 
 
 241. An insane person cannot sue an action in his own 
 name, or even with a curator ad litem. If it is necessary to 
 raise an action for him, a curator bonis sues in his official 
 capacity. Such a curator is appointed by the Court of Session, 
 or, if the yearly value of the insane person's estate does not 
 exceed £100, he may be appointed by the Sheriff. 
 43 & 44 Vict. c. 4.
 
 INSANE PERSON. 101 
 
 242. If an Insane person is called as defender, or if, in the 
 course of a process, a defender becomes insane, a curator ad 
 litem may in very special circumstances be appointed, but 
 unless the mailer is of extreme urgency the proper course lb 
 
 that the process be sisted till a curator In mis has been appointed. 
 Anderson's Trustee v. Skinner, 1871, 8 s.L.R. 325. 
 
 8. Deaf and Dumb Persons. 
 
 243. Persons who are deaf and dumb are not thereby 
 debarred their legal rights and privileges, and they are entitled 
 to sue, and may be sued. Appointment of a curator ad litem 
 is not necessary. Proceedings in which they take part per- 
 sonally are conducted through an interpreter. 
 
 ( J. Assignee. 
 
 244. The holder of a special assignation has the sole right 
 to sue for the assigned claim, and the action may be brought 
 in his name as assignee, setting forth his title in the initial 
 writ. The defender cannot object to answer the assignee, but 
 is entitled to be satisfied as to his title to sue. If the assignees' 
 title expressly authorises, as assignations of outstanding debts 
 frequently do, the debts to be sued for in the cedent's name, the 
 action may competently he brought in the cedent's name alone; 
 but, if the objection is taken that the assignee is the dominus 
 litis, he may be required to sist himself in a defended action, 
 for the cedent who assigns his debts generally is poor, and, if 
 successful, the defender is entitled to have the substantial 
 party with whom he is really litigating held liable to him in 
 expenses. 
 
 Frazer v. Dunbar, 1839, 1 D. 882. 
 
 245. When, in the course of a litigation, the interest is 
 
 transferred, either by direct assignment, or by operation of law 
 
 — as, for instance, to executors in the case of a litigant's death, 
 
 or to a trustee in the case of his bankruptcy, or to a husband 
 
 in the case of a female litigant being married — the party to 
 
 whom the interest has passed may claim to be sisted, or the 
 
 other parties may require him to sist himself. 
 
 Watt v. The Scottish North- Lynch v. Stewart, 1870, 9 M. 
 
 Eastern Railway Company. 860. 
 
 1866, 4 M 318. ' Mavor v. Aberdeen Ed. Trust, 
 
 1902, 10 S.L.T. 156.
 
 102 THE LITIGANTS. 
 
 10. Cautioner. 
 
 246. Formerly a cautioner could not be sued till the 
 principal debtor had firsl been discussed. But the Mercantile 
 Law Amendment Act of 1856 made it competent to sue both 
 or either of the principal debtor and the cautioner. The 
 more common practice is to sue both jointly and severally, 
 unless the cautioner has made it an express contract condition 
 that creditors shall first discuss the principal debtor. 
 
 19 & 20 Vict. c. 60, s. 8. 
 
 247. As a cautioner has relief against the principal debtor 
 and his co-cautioners, any one cautioner may sue for relief 
 against the others and against the principal debtor, if and 
 when he is threatened with diligence to enforce payment from 
 him of more than his own share of the cautionary obligation. 
 A cautioner who pays the creditor is entitled to demand an 
 assignation of the debt and diligence, so that he may come 
 in place of the creditor, and obtain the benefit of any diligence 
 competent to the creditor. But the cautioner's title to sue is 
 not based upon his being an assignee, and he does not neces- 
 sarily sue either the debtor or his co-cautioners in that 
 character. He has a cause of action against them upon the 
 fact that he has been called upon to pay the full debt, or has 
 paid it, whether he has taken a formal assignation or not. 
 
 Ersk. III. 3, 65. M'Kechnie v M'Farlane, 1831, 
 
 Bell's Prin. 255. 10 S. 126. 
 
 Low v. Farquharson, 1831, 9 
 S. 411. 
 
 11. FlEM-NOMINATE. 
 
 248. A copartnery, consisting of two or more disclosed 
 persons, associated for business purposes, has always been 
 regarded as a separate persona in the eye of the law, and as 
 such entitled to sue, and liable to be sued, in any civil process, 
 in the firm-name. 
 
 Ersk. III. 3, 20. Bell's Prin. 350. 
 
 249. A decree against a firm warrants diligence against the 
 partners, so that in an action for a firm's debt, brought while 
 the firm subsists, it is not necessary, although it is competent, 
 to call the individual partners. They are liable if the debt
 
 FIRM-NOMINATE. K,:; 
 
 is constituted against the firm, and in the general case they 
 are only liable as individuals when the debt has been con- 
 stituted against the firm. But there may be special circum- 
 stances which entitle a creditor to ask decree against the 
 individual partners, failing decree against the firm. If it is 
 necessary to call the partners, all known partners must be 
 called. 
 
 53 & 54 Vict. c. 39, s. 4 (2). Jardine and Another v. Canon 
 
 Reid & M'Call v. Douglas, 11th Company, &c, 1862, 24 1) 443 
 
 June, 1814, F.C. 
 
 250. After the dissolution of a firm, an action for a firm's 
 
 debt is directed against all or any of the individuals who were 
 
 the partners. They are designed as the partners of the now 
 
 dissolved firm. The fact and date of the dissolution of the 
 
 firm should be set forth in the initial writ. It is not in such 
 
 a case necessary to call the firm itself, but all the known 
 
 partners who are within the jurisdiction of the Courts of 
 
 Scotland should be included in the instance. 
 
 Forsyth v. Hare & Company, Muir v. Collett, 1862, 24 D. 1119 
 
 1834, 13 S. 42. 
 
 12. FlEM-DESCRIPTIVE. 
 
 251. Prior to 1907 a descriptive firm could not sue or be 
 
 sued under its firm-name. Nor could an agent of a descriptive 
 
 firm sue in name of the firm, for such an agent was merely 
 
 a mandatory, and a bad instance could not be cured by the 
 
 addition of a mandatory. In practice, however, an action 
 
 was regarded as properly laid against a descriptive firm if its 
 
 partners, or where these exceeded three in number at least 
 
 three of them, were called as defenders along with the firm, 
 
 and in like manner partners were associated with the firm as 
 
 pursuers. Trading under descriptive firm has in recent years 
 
 largely grown, and increasing difficulty was experienced in 
 
 ascertaining who were the partners of such firms. The Sheriff 
 
 Courts Act, 1907, made it competent to sue a descriptive firm ; 
 
 and the Amending Act of 1913 made it competent for such a 
 
 firm to sue. Creditors are therefore no longer hampered in 
 
 pursuing such debtors, for a debtor's business designation is 
 
 now also his process designation, and a firm may be sued and 
 
 diligence done against it in its descriptive name alone, without 
 
 mentioning partners. 
 
 Appendix, Rules 11 and 151. 7 Ed. VII. c. 51, s. 3 (e), and 
 
 Sch. I., Rules 11 and 151.
 
 104 THE L IT I G ANTS. 
 
 252. The effect of this, however, is nut to restrict the 
 creditor's diligence to film's assets. Although partners no 
 longer need to be included in the instance, they nevertheless 
 are liable in law as partners, just as they were before. Thus, 
 now as formerly, a decree against a descriptive firm is a 
 warrant for diligence, not only against that firm, but also 
 against any persons who may be discovered to be partners in 
 the concern using the descriptive name. The effect of the 
 statute, in short, is simply to put a firm-nominate and a 
 firm-descriptive on the same footing- as regards diligence, 
 although at the time of raising the action the partners of the 
 one are known, and the partners of the other may be as yet 
 undisclosed. 
 
 Appendix, Rules 11 and 151. 53 & 54 Vict. c. 39, s. 4 (2). 
 
 253. Banking corporations had under statute the right to 
 sue in their company name, with the addition of one of their 
 officials. But under the Sheriff Courts Acts, 1907-1913, the 
 addition of an official seems now unnecessary, as a bank, like 
 any other firm or corporation, can sue or be sued under its 
 ordinary business designation. 
 
 Appendix, Rule 11. 7 Geo. IV. c. 67. 
 
 254. Formerly a voluntary society, consisting of a certain 
 number of persons associated together for any purpose, was 
 not, in its associated capacity, a persona in law, capable of 
 suing or being sued. The whole of the members required to 
 be set forth in the instance. 
 
 Ersk. I. 7, 64. 
 
 255. This rule was attended with great inconvenience, and 
 was relaxed in cases where the membership was very large, 
 and the business of the association was entrusted to a properly 
 constituted committee of management. The office-bearers of 
 an association were also recognised by the Courts as being 
 entitled, in their official character, to enforce contracts which 
 had been expressly made with them in that character, and in 
 like manner they were liable to be sued for implement of 
 obligations officially undertaken by them as such office-bearers. 
 
 Somerville v. Rowbotham, 1862, Paxton v. Kilmarnock Football 
 
 24 D. 1187. Club, 1885, 1 S.C.R. 84.
 
 I'lllM-DKSCIMI'! IVlv L05 
 
 250. The necessity for including either the whole members 
 of a society, or the members of a committee, in the instance 
 has now been abrogated by the broadening in the Sheriff Courts 
 Acts, 1907-1913, of the definition oi "person" to include an 
 association of any description. Many such associations are 
 regulated by rules which, inter alia, prescribe the manner in 
 which the association may sue and be sued. In such a 
 the instance should be ex]>n ssed as directed by the constil iition. 
 If there is no specific direction, the association should sue or 
 may be sued under the description by which it is common lv 
 known. In such an action, however, it will tend to conveni- 
 ence if the clerk or secretary of such an association, in his 
 official capacity, is included in the instance. 
 
 Appendix, Rule 11. Pagan & Osborne v. Haig, 1910. 
 
 7 Ed. VII. c. 51, s. 3 (e). S.C. 341. 
 
 257. Although the Sheriff Courts Acts now render it 
 unnecessary to call the individual members, and authorise 
 an association to be sued in its corporate name, they do not 
 interfere with any rules in the constitution of any such associa- 
 tion, nor abrogate any statutory regulations which may exist 
 relating to legal process at the instance of, or directed against, 
 such an association. If not inconsistent with the general 
 provision of the Sheriff Courts Acts, 1907-191-3, that an associa- 
 tion may be sued under its association name, such regulations 
 remain in force, and accordingly attention must still be directed 
 to any statutory or other directions relating to the title to sue, 
 to the proper form of the instance, and to the proper mode of 
 citation. 
 
 258. The Sheriff Courts Acts accordingly do not abrogate 
 
 such statutory directions as, for instance, that actions against 
 
 public bodies must be brought within six months of the cause 
 
 of action arising; or that actions against the Crown are not 
 
 laid against a minister, or a department, but against the Lord 
 
 Advocate; or that an action against a town council must be 
 
 served upon the town-clerk; or that an action by or against a 
 
 friendly society must be laid in accordance with its rules: or 
 
 that, whilst an outsider must sue the trustees of a friendly 
 
 society, a member or any one claiming through a member is 
 
 entitled to sue " any person who receives contributions or issues 
 
 "policies," and many other such like directions. 
 
 20 & 21 Vict. c. 44. 59 & 60 Vict. c. 25. s. 94 (2). 
 
 56 & 57 Vict. c. 61. 63 & 64 Vict. c. 49, s. 9.
 
 106 TPIE LITIGANTS. 
 
 259. Whilst it may not be essential, it will often be 
 
 desirable, to associate one or more individuals in the instance, 
 
 especially in the case of an association which has no local 
 
 habitation of its own, and whose domicile for citation purposes 
 
 is that of its official secretary or clerk. The scheme of the 
 
 statutes appears to be that all kinds of associated bodies, 
 
 including nominate firms with disclosed partners, shall be put 
 
 upon the same footing as regards instance and jurisdiction. 
 
 Citation is to be made at the principal place of business if it 
 
 is within the jurisdiction of the Court where the action is 
 
 brought; or, if not, at any place of business within its 
 
 jurisdiction. 
 
 Appendix, Rule 11. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 11. 
 
 260. When the domicile of citation of any associated body 
 is that of its clerk or secretary, it will be convenient, although 
 it may not be essential, to call the clerk or secretary in his 
 official capacity. In like manner, when such an associated 
 body is pursuer, its official clerk or secretary should be men- 
 tioned in the instance, so as to identify the associated body, 
 and notify to the defender whom he is called to answer. 
 
 261. There is no statutory definition of the term " place of 
 " business." In the common commercial case, it requires no 
 definition, but when jurisdiction is created by the clerk or 
 secretary having a place of business within it, there is, 
 perhaps, room for some dubiety as to the meaning. The 
 secretary of such a private association, for instance, an 
 amateur dramatic club, might not himself be a householder, 
 and might be an employee in the warehouse of one having no 
 connection with the club. Obviously his employer's warehouse 
 cannot be the place of business of that secretary, or of that 
 club, in the sense of Rule 11 of Schedule II. of the Sheriff 
 Courts Act, 1913. What that contemplates, it is thought, is 
 that, where there is no separate place set apart for conducting 
 the business of the club, the place where the secretary, in fact, 
 does conduct that business becomes the club's place of business 
 for citation purposes, whether that place be business premises, 
 or the secretary's dwelling-house, or apartments, and that the 
 club, as an associated body, would be competently cited by 
 service upon the secretary at that place.
 
 FIRM-DESCRIPTIVE. L07 
 
 262. Public bodies and corporations may sue. and be sued, 
 under their official descriptive name, without the addition of 
 the names of members or officials ; but, although it is not now 
 necessary, it is still competent to call the members of a cor- 
 poration. If called only in their official capacity, a minority 
 are bound by the majority as to defending, and cannot dis- 
 sociate themselves by minute of disclaimer. Wherever there 
 is any dubiety as to the exact identity of a corporate body, it 
 will always be convenient to include the clerk or other chief 
 official in the instance. Such designations, for instance, as 
 the Corporation of the City of Glasgow, the Town Council of 
 Aberdeen, the Scottish "Wholesale Co-operative Society, 
 Limited, or the Bank of Scotland, need no further identifica- 
 tion than the addition of their office address, but such a body 
 as the Upper Ward District Committee of the County Council 
 of Lanarkshire should be identified, and for jurisdiction pur- 
 poses localised, by adding "and A B, writer in Lanark, their 
 "clerk." Where the defender is an impersonal body, such 
 as, for instance, a church congregation, the office-bearers or 
 committee of management should be called. 
 
 Bridge v. South Portland Street Eadie v. Glasgow Corporation, 
 
 Synagogue, 1907, S.C. 1351. 1908, S.C. 207. 
 
 263. The alteration of the law as to suing descriptive firms 
 and corporations will avoid difficulty formerly experienced in 
 the bringing of actions, but it may increase the responsibility 
 of law agents and officers as regards effecting valid service 
 and executing diligence ; and, although a brief instance is now 
 competent, it is still also competent, and it is always safe, to 
 include any known officials, especially when the officials of an 
 association have been the contracting parties. 
 
 Aitchison v. Macdonald, 1910, 2 S.L.T. 413. 
 
 13. Vexatious Litigant. 
 
 264. A person who may ostensibly have a title to sue, and 
 a case to state, may nevertheless be precluded from suing, if 
 he is in the habit of using the Courts for the sole purpose of 
 causing annoyance, and not for righting any real wrong The 
 victim of excessive litigiosity may complain to the Lord 
 Advocate, who may obtain from the Court of Session an order 
 authorising the Courts of law in Scotland to refuse to entertain
 
 108 THE LITIGANTS. 
 
 any action by the litigious person complained against, unless 
 the case has first been submitted to, and lias been sanctioned 
 by, the Court of Session. The Lord Ordinary on the Bills, 
 upon the application of the Lord Advocate, may grant such an 
 order if satisfied "that any person has habitually and per- 
 sistently instituted vexatious legal proceedings, without any 
 "reasonable ground for instituting- such proceedings, whether 
 '• in the Court of Session or in any inferior Court, and whether 
 " against the same person or against different persons." 
 61 & 62 Vict. c. 35. 
 
 14. Mandators . 
 
 265. No person is bound to litigate in Scotland with a 
 person who is not subject to the jurisdiction of the Scottish 
 Courts, for every litigant is entitled to have some one respon- 
 sible to the Court for the conduct of the case, and responsible 
 to him for expenses, should he ultimately succeed. Accord- 
 ingly, either a pursuer or a defender may be required to sist 
 a mandatory. It is within the discretion of the Court to refuse 
 a motion to order a party to sist a mandatory. In the case 
 of a pursuer this is seldom done, but in the case of a defender 
 the Court requires very good reason before ordering a 
 mandatory to be sisted, especially where the defender was 
 subject to the jurisdiction of the Court at the time the action 
 was raised. A motion to order a party to sist a mandatory 
 may be made at any stage of a cause, but it should be made 
 so soon as the circumstances emerge which render a mandatory 
 necessary, because the objection to a party litigating without 
 a mandatory may be waived by implication, as well as 
 expressly, and the Court is inclined to regard with suspicion 
 a motion too long delayed. A pursuer in an action where a 
 mandatory is necessary will do wisely to sue along with one, 
 for, although, if the question is not raised, the action may 
 proceed without one, the validity of an arrestment on the 
 dependence might be challenged if there is no mandatory. 
 
 Johnston v. Jeudwino, 23rd D'Erneste v. D'Erneste, 1882, 9 
 
 January, 1813, F.C. R. 655. 
 
 Tingman r. Tingman, 1854, 17 Young v. Carter, 1907, 14 S.L.T. 
 
 D. 122. 829. 
 
 Buik v. Patullo. 1855, 17 D. 568. S.S. " Dansborg " v. " Blan- 
 
 Simla Bank v. Home, 1870, 8 quez," 1908, 15 S.L.T. 1046. 
 
 M 781 Bank of Scotland v. Rorie, 1908, 
 
 16 S.L.T. 130.
 
 MANDATORY. 109 
 
 2'66. A H 1 1 d u o ] i the common case in which a mandatory is 
 called for is that of a foreigner, thai is not necessarily the only 
 case. It is in the discretion of iho Court, for instance, to 
 order a mandatory to be sisted to a party who is defending an 
 action, but who has permanently left Scotland jicnrfente lite, 
 and who has no estate in Scotland. When an order has been 
 made, and not implemented, the party failing to obtemper 
 the order is in default, and decree may be granted under llule 
 56 of the Sheriff Courts Act, 1907. Upon failure to sisl a 
 mandatory, the proper judgment is not dismissal of the action, 
 but decree or absolvitor, as the case may be. 
 Train r. Scott, 1911, S.C. 736. 
 
 267. A mandatory, although ostensibly necessary, is aot 
 always sisted. When he may be dispensed with is entirely in 
 the Court's discretion. The ordinary rules are not usually 
 enforced in consistorial causes; or where the party is the 
 owner of heritage within Scotland, although the action does 
 not concern it ; or where there are funds or moveables belong- 
 ing to the party within the jurisdiction of the Court; or 
 where there are other solvent parties conjoined in the instance, 
 who are subject to the jurisdiction of the Scottish Courts; but, 
 when a mandatory is ordered to be sisted, the case cannot 
 proceed till this has been done, or an alternative arrangement 
 has been come to, such as consignation or caution. A litigant 
 is not bound to accept such an alternative, but is generally 
 willing to do so. 
 
 Brown v. Lindley, 1833, 12 S. Barstow v. Smith, 1851, 13 D. 
 
 18. 854. 
 
 Rankin v. Nolan, 1842, 4 D. Robb's Trustees v. Hutton, 1866, 
 
 832. 4 M. 546. 
 
 Railton v. Mathews, 1844, 6 D. Antermony Coal Company v. 
 
 1348. Wingate, 1866, 4 M. 544. 
 
 Sandilands v. Sandilands, 1848, Low v. Low, 1905, 12 S.L.T. 
 
 10 D. 1091. 817. 
 Caledonian & Dumbartonshire 
 
 Railway Company v. Turner, 
 
 1849, 12 D. 406. 
 
 268. A mandate falls by the death of the mandant, but 
 the mandatory may be held liable for expenses during the 
 time he acted, if the mandant' s representatives do not Bisi 
 themselves. A mandatory can withdraw only by leave of the 
 Court. Whilst he remains in the cause, he is liable for 
 expenses, even if his mandant has meantime come to reside in 
 Scotland. A mandatory can be decerned against only for 
 expenses. His liability is joint and several with the mandant.
 
 110 THE LITIGANTS. 
 
 It is not competent to sist a mandatory, conditional upon his 
 
 not being liable for expenses. The mandatory is also liable 
 
 to implement process orders made by the Court, failing the 
 
 mandant. If a mandatory is sisted in a pending process, he 
 
 becomes liable for expenses incurred both before and subsequent 
 
 to his appointment. 
 
 Pease v. Smith 1822, 1 S. 420. Marshall v. Connor, 1848, 21 Jur. 
 
 Martin v. Underwood, 1827, 5 63. 
 
 S. 730. Renfrew v. Glasgow Magis- 
 
 Lindsay v. Lindsay, 1827, 5 S. trates, 1861, 23 D. 1003. 
 
 310. Overbury v. Peek, 1863, 1 M. 
 
 Robertson v. Exley, 1833, 11 1058. 
 
 S 320 Erskine v. Walker's Trustees, 
 
 1883, 10 R. 717. 
 
 269. A mandatory, besides being an independent person 
 
 subject to the jurisdiction of the Scottish Courts, must be a 
 
 person regarded by the Court as sufficient, and in general he 
 
 must be a person of at least the same social status as the 
 
 mandant. He will not be accepted if he is a bankrupt, or 
 
 known to be insolvent, but he may be a sufficient mandatory 
 
 although the Court may not know whether he has sufficient 
 
 funds at the moment to meet his possible liability for expenses. 
 
 The whole matter of the sufficiency of the mandatory is in the 
 
 discretion of the Court, and if necessary a remit may be made 
 
 to a suitable party to inquire and report upon the mandatory's 
 
 sufficiency. 
 
 Turnbull v. Paul, 1829, 8 S. 124. Barstow v. Smith, 1851, 13 D. 
 
 Stephenson v. Dunlop, 1841, 4 854. 
 
 D. 248. Harker v. Dickson, 1856, 18 D. 
 
 M'Kinlay v. M'Kinlay, 1849, 11 793. 
 
 D. 1022. 
 
 270. In present-day practice the matter of the sufficiency 
 of a mandatory is not so rigidly regarded as it formerly was, 
 and since the Judgments Extension Act of 1882 made decrees 
 granted in the Courts of any of the three kingdoms enforceable 
 by registration in the others, a person subject to the jurisdiction 
 of the English and Irish Courts has not been regarded as a 
 foreigner requiring to sist a mandatory, and an English or 
 Irish mandatory has in like manner been regarded as a 
 sufficient mandatory in Scotland, although he might not be 
 directly subject to the jurisdiction of the Scottish Courts. 
 
 Lawson's Trustees v. British Blow v. Ecuadorian Association, 
 
 Linen Bank, 1874, 1 R. 1065. Limited, 1903, 5 F. 444. 
 
 Carr & Sons v. M'Lennan, Blair Hudson v. Innes & Grieve, 1907, 
 
 & Co., 1885. 1 S.C.R. 262. 24 S.C.R. 190. 
 
 Dessan v. Daish, 1897, 24 R. M'Gildowney v. Hart, 1911, 27 
 
 976 S.C.R. 37.
 
 MANDATORY. Ill 
 
 271. A party who is not a foreigner, and may not require 
 to sist a mandatory, may nevertheless be sometimes ordered to 
 produce a mandate, to satisfy the Court and the opposing party 
 of his title to sue, as, for instance, a party suing as factor or 
 commissioner, or as a trustee, or an official of a corporation, 
 or generally any person suing or defending an action for 
 another. 
 
 Fischer v. Anderson, 1896, 23 R. 395. 
 
 272. A party may be required to sist a mandatory when 
 he becomes a litigant, although he is not the pursuer of an 
 action. A claimant in a bankruptcy process, for instance, 
 who is a foreigner does not necessarily claim through a manda- 
 tory; nor does a foreigner who is a claimant in a multiple- 
 poinding; but such a person, when his claim is contested, 
 becomes a litigant in a Court process, and the pursuer of an 
 issue, and he would probably be required to sist a mandatory. 
 
 Robertson Durham (Bruce & Co. Liq.) v. Stern & Watt, 1909, 
 47 S.L.R. 77.
 
 CHAPTER V. 
 
 THE ACTION. 
 
 1. General. 
 
 273. The Sheriff Courts Act of 1907, as amended by the Act 
 of 1913, declares that "action or cause includes every civil 
 "proceeding competent in the Ordinary Sheriff Court." This 
 repeats the definition of the Sheriff Courts Act of 1876. Every 
 civil proceeding, except a Small Debt action, now proceeds in 
 the Ordinary Sheriff Court. In this definition the word 
 "Ordinary" is not applied to the action, but to the Court. 
 Under the Sheriff Courts Acts a civil proceeding may be what 
 is known as an ordinary action (although that is not a statutory 
 expression); or it may be a summary cause; or it may be a 
 summary application; or it may be a statutory arbitration 
 under the Workmen's Compensation Act; or it may be an 
 appeal allowed to the Sheriff under statute; but these terms 
 refer only to the procedure to be followed. They are all alike 
 civil proceedings in the Ordinary Sheriff Court (as distinguished 
 from civil proceedings in the Small Debt Court). Accordingly, 
 although the subsequent procedure in each of these is different, 
 the initial procedure is the same. They all commence with 
 an initial wtit, in the form provided by the Sheriff Courts 
 Act, 1913. There are only three exceptions to this — [a) service 
 of heirs proceedings; (b) Small Debt proceedings ; and (c) sum- 
 mary removings. These are regulated — the first by the 
 Conveyancing Acts of 1868 and 1874; the second, by the Small 
 Debt Acts of LS:')7 and 1889 (as amended by the Sheriff Courts 
 Act, 1007); and the third, by special directions in the Sheriff 
 Courts Acts, 1907-1913. 
 
 Appendix, s. 3 (d), (i), (p), Rule 7 Ed. VII. c. 51, s. 3 (d), (i), 
 
 1. (p), and Sch. I., Rule 1. 
 
 32 & 33 Vict. c. 116. M'Dermott v. Ramsay, 1876, 4 
 
 37 & 38 Vict. c. 94. R. 217. 
 
 39 & 40 Vict. c. 70, s. 3.
 
 ORDINARY ACTION. 113 
 
 2. Ordinary Actiox. 
 
 274. The term "ordinary action," although not a statutory 
 term, is nevertheless a convenient and well-understood term, 
 and it is in this work used as referring to the civil business 
 brought before the Sheriff Court, other than that appropriated 
 to special Courts, or that which, within the Ordinary Court 
 itself, is regulated by special enactments. 
 
 3. Summary Cause. 
 
 275. This, in name, was a new creation of the Sheriff 
 Courts Act, 1907, but it is not new in principle. It in sub- 
 stance preserves, but improves upon, the machinery for the 
 recovery of debts not exceeding £50, which was introduced by 
 the Debts Recovery Act of 1867, a piece of well-meant, but ill- 
 devised, legislation, which in practical experience was a 
 failure, and which was repealed by the Sheriff Courts Act, 
 1907. 
 
 Appendix, s. 8, Rule 41. 7 Ed. VII. c. 51, s. 3 [i), 8, 52. 
 
 30 & 31 Vict. c. 96. 
 
 27G. The " summary cause " procedure was, under the 1907 
 Act, applicable to all actions (except under the Small Debt 
 Acts and the Workmen's Compensation Act) for payment of 
 money not exceeding £50, exclusive of interest and expenses. 
 This includes every description of money claim. In the 
 repealed Debts Recovery Act there was an unfortunately 
 expressed restricted definition of " debt," which greatly 
 restricted the usefulness of that Act. It applied only to 
 " actions of debt for house maills, men's ordinaries, servants' 
 "fees, merchants' accounts, and other the like debts." What 
 exactly this included led to much dubiety, and to many con- 
 flicting decisions of the Courts. Actions of damages were 
 clearly excluded, and many other actions were of doubtful 
 competency. The repeal of the Debts Recovery Act removed 
 all such questions, but the " summary cause " definition in the 
 1907 statute gave rise to some new questions. 
 
 Appendix, s. 3 (c). 7 Ed. VII. c. 51, s. 3 (i). 
 
 30 & 31 Vict. c. 96, s. 2. 
 
 277. There was no room for doubt as to the meaning, when 
 8
 
 114 THE ACTION. 
 
 the crave was for a money paymenl only. As to that, there 
 was but oih' qualification, that of amount. If the claim did 
 not exceed £50, the action followed the procedure of the sum- 
 mary cause. But where the crave had mixed conclusions, the 
 meaning was perhaps not quite so clear, as, for instance, in 
 an action for count and reckoning, with an alternative money 
 craving not exceeding £50 ; or an action for delivery with a 
 similar alternative money craving; or a sequestration for rent 
 with a craving to replenish; or an action of multiplepoinding, 
 or the like. 
 
 Appendix, s. 3 {%). 7 Ed. VII. c. 51, s. 3 (i). 
 
 278. An action for count and reckoning was not a summary 
 cause, for the leading crave in that form of action is for an 
 accounting, the conclusion for a money payment being an 
 incidental or alternative one, which does not come into 
 operation at all, unless and until the accounting sought has 
 been made, and a balance due pursuer ascertained; or until 
 the defender has failed or refused to account. The leading 
 object of the action being to compel defender to produce an 
 account, the ancillary conclusion for money did not make it 
 a summary cause. 
 
 279. So also an action for delivery, or with any other ad 
 factum praistandum conclusion was not a summary cause, not- 
 withstanding it might also crave a money payment. The 
 money craving was merely an alternative, which might never 
 be insisted in. In this class of action the pursuer's leading 
 right is to get an ad factum fra'dandum decree, and it is only 
 if he does not insist upon that craving, or if delivery has 
 become impossible, that the money craving comes into 
 operation at all. 
 
 7 Ed. VII. c. 51, s. 3 (/). 
 
 280. Again, an action of sequestration for rent was not a 
 summary cause, although it included a crave for decree and 
 warrant to sell for a specified sum for rent, any more than it 
 was an action ad factum j"'" stiun/um because it included a 
 crave that after a sale for past due rent the defender should 
 be ordained to replenish the premises in security of the current 
 rent. That is no doubt an ad factum prcestanchim conclusion
 
 SUMMARY CAUSE. 115 
 
 of a sort, but the pursuer could not ask a fial in i imprisonment 
 failing implement of an order to replenish. Thai crave is 
 merely an incidental crave, alternative to that for ejection 
 which immediately follows it. Accordingly, although one 
 crave had the object of obtaining payment of rent, and another 
 the object of having the premises plenished, the action was not 
 a summary cause, even if the total rent embraced in the crave, 
 past due and current together, did not exceed £50, because the 
 leading purpose of the action was not to recover a money debt, 
 but to sequestrate the tenant's effects preferably to the landlord. 
 
 Appendix, Rules 104-109. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 104-109. 
 
 281. Nor was an action of multiplepoinding to distribute 
 a fund not exceeding £50 a summary cause. An action of 
 multiplepoinding is not an action for payment of money. The 
 leading conclusion of such an action, and its object, is exonera- 
 tion of the holder of a fund or subject, to which there are 
 competing claims, and for allocation amongst the claimants 
 according to their rights. 
 
 282. Nor was an action of furthcoming to make good a 
 decree for debt not exceeding £50 a summary cause, although 
 the arrested subject was money, for an action of furthcoming 
 is not a money claim, in which an original decree is craved. 
 It is rather a form of diligence to make operative a decree 
 which has already been obtained. 
 
 283. When the arrested subject was not money, a furth- 
 coming still more obviously was not a summary cause, for in 
 that case the craving is not for payment of money, but for an 
 order upon the arrestee to deliver property, or execute a 
 transfer of shares, or otherwise to make the arrested subject 
 available to the arrester. 
 
 284. The scope of the summary cause has, however, been 
 enlarged by the Act of 1913, which has re-cast the definition 
 of a summary cause given in the 1907 Act. That statute had 
 permitted an action to be, of consent, treated as a summary 
 cause, notwithstanding that its value might exceed £50. The 
 1913 Act goes further. It stamps the character of summary
 
 HG THE ACTION. 
 
 cause upon " all actions" (not necessarily actions for payment 
 od money) where it is admitted that the value does not exceed 
 £50. 
 
 Appendix, s. 3 (/). 2 & 3 Geo. V. c. 28, Sch. I. 
 
 285. The criterion is no longer the sum sued for; nor even, 
 
 indeed, that the action is for a money claim; but is " the value 
 
 "of the action." There are many actions of all sorts brought 
 
 where it is obvious that the value of the action does not exceed 
 
 £50. If it is not obvious, it is open to a party desiring to have 
 
 an action regarded as a summary cause to make a specific 
 
 averment that the value does not exceed £50; and, this being 
 
 a fact within the other party's knowledge, he is bound to admit 
 
 or deny it specifically. Under a new procedure rule introduced 
 
 by the 1913 Act, if he does not deny it, he is held as admitting 
 
 if. The 1913 definition of a summary cause therefore may 
 
 now give rise to fresh questions as to what it includes. It 
 
 seems to include many actions which the 1907 definition did 
 
 not cover. 
 
 Appendix, s. 3 (i), Rule 44. Duke of Argyll v. Muir, 1910, 
 
 2 & 3 Geo. V. c. 28, Sch. I. S.C. 96. 
 
 286. In a money claim the criterion of value is the capital 
 sum sued for. It has been suggested that, in the statutory 
 definition of a summary cause, the exclusion of interest refers 
 only to interest following upon a decree, and that a claim for 
 past due interest may raise a claim above the summary cause 
 limit, as, for instance, a claim laid upon a past due bill for 
 £50, in which the crave w T ould be for payment of £50, and 
 interest, not from the date of citation, but from the due date 
 of the bill. The words of the statute seem to make it clear 
 that, in no circumstances, is interest a factor in determining 
 whether an action is a summary cause. A claim for £50, with 
 interest from a year back, is as much a summary cause as a 
 claim for 650 with interest from date of citation. In either 
 case 3 it is the amount of the principal sum sued for which gives 
 the action its character. 
 
 Appendix, s. 3 (i). 2 & 3 Geo. V. c. 28, Sch. I. 
 
 7 Ed. VII. c. 51, s. 3 (i). 
 
 287. An action is not a summary cause unless the sum sued 
 for represents the pursuer's complete claim, and that is within
 
 SUMMARY CAUSK. 117 
 
 the £50 limit. Thus an action which really seeks to Bel up a 
 document of debt as a continuing- obligation is no1 necessarily .1 
 summary cause, even although the amount presently exigible 
 and sued for is under £50. 
 
 Stevenson v. Sharp, 1910, S.C. Abrahams, Limited v. Campbell 
 
 580. (1910), 1911, S.C. 353. 
 
 288. The determination of whether an action is a summary 
 cause will in practice rest in the first instance with the Sheriff- 
 clerk, for it is he who issues the warrant for service, and the 
 warrant is not the same in an ordinary action as in a summary 
 cause. In a summary cause it requires the defender to appear 
 and answer in Court upon a date set forth in the warrant. In 
 an ordinary action it requires the defender to lodge a notice 
 of appearance if he intends to defend. The Sheriff-clerk can, 
 of course, only judge of the ex facie value, and the ultimate 
 determination of whether an action is a summary cause will 
 rest with the Sheriff. 
 
 Appendix, Rule 4. 
 
 289. There is no statutory provision as to the stage at which 
 the question whether an action is a " summary cause" is to be 
 held as finally settled, liut, of course, it is not to be presumed 
 that merely because the Sheriff-clerk may sign the warrant, 
 the Legislature intended to entrust the Sheriff-clerk with the 
 duty of deciding the important question whether an action is 
 a " summary cause " or not, and as the parties themselves, 
 under the new definition of the 1913 Act, may make the action 
 a summary cause by consent " at any stage," the Sheriff also, 
 it is thought, may do so. What seems to be contemplated is 
 that the Sheriff-clerk is in the first place to exercise his dis- 
 cretion as to the form of warrant, but that the Sheriff, under 
 his unfettered powers in dealing with a summary cause, if he is 
 of opinion that the action has as regards the warrant for service 
 been erroneously treated as a summary cause, may remit it 
 to the roll of ordinary actions. If he is of opinion that it has 
 been properly treated as a summary cause, and he does not 
 consider formal pleadings necessary, he will simply fix a diet 
 for the trial of the cause. 
 
 Appendix, Rules 4, 7, 41. 
 290. The question has been raised whether in a money
 
 118 THE ACTION. 
 
 claim the character of a summary cause is changed, as regards 
 procedure, when a defence by way of a money counter claim 
 exceeding £50 is stated. Under the 1907 Act a counter claim 
 stated in defence is equivalent to a formal counter action, and, 
 if he establish his counter claim, not merely does the (defender 
 thereby avoid his pursuer's claim, but the defender himself 
 may get decree for the excess of his claim over the pursuer's. 
 But stating his counter claim by way of defence is merely a 
 privilege accorded to a defender. He is under no obligation 
 to do so, and the statute does not debar him from stating his 
 claim in a substantive action. If a defender avails himself 
 of the statutory privilege, he must take it with iis 
 qualifications. The character of a money summary cause is 
 determined, not by the amount decerned for, but by the amount 
 sued for. 
 
 291. It appears therefore that the amount of a counter 
 claim is not an element at all in the matter. It would be a 
 very simple device for a defender who is sued for £50 for goods 
 sold and delivered to state a counter claim of damages laid at 
 a round sum of £500. If the mere statement of such a counter 
 claim altered the character of the action, any defender would 
 have it in his power to defeat the provisions of the statute, 
 which are designed to afford creditors prompt procedure for 
 recovery of debt. It is in a defender's option whether he state 
 his claim by way of counter claim. If he do so, he must 
 observe that it will be dealt with under the summary cause 
 procedure. If a defender has a claim exceeding £50 in value 
 to set off against his creditor's claim, and if he wants to have 
 his full rights, his course is to make reference only to his 
 counter claim in his defences, and to raise a substantive action 
 for his counter claim. 
 
 292. In such a case the ordinary action for the counter 
 claim, and Ihe summary cause, may be conjoined, for 
 there is nothing in the statute, or in the procedure rules, to 
 prevent an ordinary action and a summary cause being con- 
 joined. But there is nothing either which necessitates their 
 being conjoined, and this is often inconvenient, for the actions 
 might have to be disjoined before final judgment is pro- 
 nounced. It is in all cases a question of circumstances. If 
 the ordinary action is raised subsequent to, and in answer to,
 
 SUMMARY CAUSE. L19 
 
 a summary cause, its contingency to the summary cause will, 
 of course, be closely scrutinised. If its object appears t<> \»> 
 merely to hamper the summary cause procedure, an order for 
 conjunction will not readily be granted. If the circumstances 
 warrant conjunction, then the proper course would seem to be 
 to remit the summary cause process to the other. 
 
 293. It is to be observed that a summary cause making a 
 claim not exceeding £50 is, in its nature, not different from an 
 ordinary action making a claim for £50,000. They are 
 alike actions; they alike commence by initial writ; and they 
 are served upon the same inducise. It is in regard to procedure 
 only that there is any difference. The differences in procedure 
 briefly stated are — (1) In the warrant of citation in an ordinary 
 action the defender is called upon, if he means to defend, to 
 lodge a formal notice of appearance; whilst in a summary 
 cause he is called upon to attend and answer at a time and 
 place set forth in the warrant of citation. (2) In an ordinary 
 action decree in absence may be granted so soon as the induciee 
 has expired, and appearance has not been entered, without 
 waiting for a formal sitting of the Ordinary Court, whilst the 
 summary cause must be called at the appointed place and time, 
 and decree in absence cannot be granted till then, for the 
 obvious reason that, until it is so called, it cannot be seen 
 whether the defender means to answer. (3) In an ordinary 
 action which is defended, there must be a formal record made 
 up, and the evidence is recorded; whilst in a summary cause 
 the Sheriff has an entirely free hand to order such procedure as 
 he thinks requisite. It is not necessary, although it may 
 sometimes be convenient, to have a formal condescendence, or 
 formal defences, or a formal closed record, and the evidence 
 is not necessarily recorded. The only process direction is that 
 the Sheriff at the first calling is to note the pleas of parties, 
 and appoint a diet for the trial of the cause, and even that is 
 not a peremptory direction, for alternatively he " may order 
 "such other procedure as the circumstances seem to hini to 
 "require." (4) In an ordinary action exceeding £50 in value 
 there is full appeal of right; whilst in a summary cause the 
 appeal beyond the Sheriff is only competent if the Sheriff 
 certifies the case as suitable for appeal to the Court of Session. 
 
 Appendix, s. 3 (/) 8, 28, Rule 41. 2 & 3 Geo. V. c. 28, Seh. I. 
 
 7 Ed. VII. c. 51, s. 8, Sch. L, 
 Rule 41.
 
 120 TIIK ACTION. 
 
 294. In the matter of expedition, the procedure in a sum- 
 mary cause may be duly summary. No doubt, in vacation, 
 there is apparently greater promptitude in obtaining decree 
 in an ordinary undefended action, Because a decree in absence 
 may be granted immediately upon the expiry of the inducing 
 when a notice of appearance has not been lodged, thus avoiding 
 probably weeks of delay in waiting for a formal sitting of 
 the Court. But, even in vacation, this delay in obtaining 
 decree in absence need not necessarily occur in a summary 
 cause, any more than in an ordinary action, for, although the 
 warrant of citation requires a defender to " answer within the 
 " Sheriff Court-house," it does not necessarily require him 
 to answer at a formal sitting of the Court. He may be cited 
 to attend in chambers. During session, the summary cause 
 has greatly the advantage of the ordinary action. No time 
 need be occupied in waiting for pleadings, for in actions for 
 debt not exceeding £50 it is very seldom that formal plead- 
 ings are of any assistance. The pursuer's case is set forth in 
 the initial writ. The Sheriff notes the defender's case in 
 answer, and the case may go to trial at once, and be decided 
 within a very short time. 
 
 Appendix, Rule 41. 7 Ed. VII. c. 51, Sch. I.. Rules 
 
 23-41, Form B. 
 
 4. Summary Application". 
 
 295. The summary application is not a new process. It 
 is not even a new name, although in the Sheriff Courts Act, 
 1907, it is for the first time officially defined. The Sheriff has 
 always had jurisdiction to entertain and dispose of, in a 
 summary manner, many common law applications. Such 
 applications, for instance, as for a precept of arrestment 
 jurisdictionis fundandce causa; for warrants to disinter bodies, 
 to make post-mortem examinations, to cite witnesses in an 
 arbitration, or before a Presbytery, to realise perishable goods, 
 to sell undelivered or rejected goods, to seal repositories, to sell 
 stray cattle, to bring a prisoner from prison to give evidence 
 in a civil cause, to carry back sequestrated effects, and many 
 others, are dealt with by the Sheriff under his common law 
 powers as judge ordinary of the bounds. In such common 
 law applications, a warrant is usually granted de piano. The
 
 SUMMARY APPLICATION. 123 
 
 great majority of summary applications, however, are brought 
 in the Sheriff Court under statutes. 
 
 Appendix, s. 3 {p). 7 Ed. VII. c. 51, s. 3 (p). 
 
 296. A summary application should not be confounded with 
 a " summar}^ cause," the one having no connection with the 
 other. The provisions of the amended section 8 of the Sheriff 
 Courts Act, 1907, and Rule 41 of the Act of 1913 do not apply 
 to summary applications. Nor do the procedure rules apply to 
 summary applications, with the exception of Rule 4 and Form 
 B, which prescribe the mode of citation. 
 
 Appendix, s. 8, 50, Rules 4, 41. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 4, Form B. 
 
 297. The procedure to be followed in a summary applica- 
 tion is that set forth in section 50 of the Sheriff Courts Act, 
 1907, and this is the sole procedure direction. This should be 
 followed in all cases, except those brought under statutes con- 
 ferring summary jurisdiction on the Sheriff, where other 
 procedure is particularly prescribed. 
 
 Appendix, s. 50. 7 Ed. VII. c. 51, s. 50. 
 
 298. In some of the statutes, the general direction as to 
 procedure is that the application is to be determined sum- 
 marily in the manner provided by section 52 of the Sheriff 
 Courts (Scotland) Act, 1876. That was a provision much to 
 the same effect as section 50 of the Sheriff Courts Act of 1907. 
 The 1876 enactment is now repealed, but the 1907 A< t 
 provides that, " Wherever in any Act of Parliament an 
 " application is directed to be heard, tried, and determined 
 " summarily or in the manner provided by section 52 of the 
 " Sheriff Courts (Scotland) Act, 1876, such direction shall be 
 " read and construed as if it referred to this section of this 
 "Act." 
 
 Appendix, s. 50. 7 Ed. VII. c. 51, s. 50, Proviso 2. 
 
 39 & 40 Vict. c. 70, s. 52 (now 
 repealed). 
 
 299. It is to be regretted that the Sheriff Courts Act of 
 1907 did not, when introducing a uniform procedure in sum- 
 mary applications, also introduce a uniform method of appeal, 
 when appeal is competent, for some existing appeal methods are
 
 122 THE ACTIOX. 
 
 not convenient. The Sheriff Courts Acts, 1907-1913, however, 
 expressly reserve existing appeal rights in summary applica- 
 tions. It is provided thai "nothing contained in this Act 
 "shall affeci any righl of appeal provided by any Act of 
 " Parliament under which a summary application is brought," 
 so that the appeal provisions of such statutes remain un- 
 changed, and mus1 he observed. 
 
 Appendix, s. 50. Strichen Parish Council v. Good- 
 
 7 Ed. VII. c. 51. s. 50, Proviso 2. willie, 1908, S.C. 835. 
 
 300. A summary application of any sort is a civil proceed- 
 ing- in the Ordinary Sheriff Court. It is therefore an " ac1 lob ," 
 and must be commenced by initial writ. It is served (when 
 service is necessary, which it sometimes is not) in the same 
 manner as a summary cause, by requiring the defender to 
 attend and answer to the citation, at a place, and at an hour, on 
 a day named. Thereafter the brief but comprehensive pro- 
 cedure direction is that the Sheriff " shall summarily dispose 
 " of the matter and give his judgment in writing." The 
 evidence need not be recorded, unless so ordered, and the form 
 of judgment is not prescribed. Rule 82 of Schedule I. of the 
 Sheriff Courts Act, 1907, which requires a judgment to set 
 forth findings in fact and in law separately, with a note setting 
 forth the grounds of judgment, does not apply to every sum- 
 mary application, and, in the majority of such cases, would be 
 altogether inappropriate. There may be cases, however, in 
 which such a form of judgment would be convenient, as, for 
 instance, in an application under some special statute, where 
 there is an appeal. In the majority of summary applications 
 at common law 7 , the usual form of judgment is simply, " Grants 
 " warrant as craved." 
 
 Appendix, s. 50. M'Dermott v. Ramsay, 1876, 4 
 
 7 Ed. VII. c. 51, s. 3 {d), Sch. R, 217. 
 
 I., Rules 1. 4, Form B, s. 50, 
 
 Rule 82. 
 
 301. As a summary application is an action, and the 
 jurisdiction clauses of the 1907-1913 Acts are appropriate to 
 " any action," a summary application may be brought wherever 
 an ordinary action is competent; and wherever, and in 
 whatsover manner, jurisdiction may be founded for raising an 
 ordinary action, it may in like manner be founded for bringing 
 a summary application. Thus, a foreigner may be the
 
 SUMMARY APPLICATION. L23 
 
 defender in a summary application, if jurisdiction has been 
 founded against him by arrestment ad fundandam jurisdic- 
 timiem, or he may make himself liable ex reconventions to be 
 served with a summary application. A defender in a Bummary 
 application may also prorogate jurisdiction, unless barred by 
 statute authorising- the application, as, for instance, aD applica- 
 tion under the Workmen's Compensation Act, 1906, which 
 must be brought in the Court of the district where the parties 
 reside, if they all reside in the same district, or if not in the 
 Court of the district where the accident occurred. 
 
 Appendix, s. 3 (p), 6, 50. Act of Sederunt, 26th June, 
 
 6 FA. VII. c. 58, Sch. II., s. 11. 1907, s. 4 
 
 7 Ed. VII. c. 51, s. 6. 
 
 302. The proceedings in a summary application are entirely 
 in the Sheriff's discretion. His only compulsory duty is to 
 give his judgment in writing. It has been suggested that the 
 direction of section 50 of the Sheriff Courts Act, 1907, that 
 the Sheriff " shall summarily dispose of the matter," precludrs 
 any written pleadings being allowed. But the ordering of 
 written pleadings does not necessarily retard, and often 
 accelerates, the summary disposal of an application of this 
 sort. In the common case, no pleadings are necessary; but 
 there are cases in which the exact attitude of the contend in e 
 parties can be best seen by their putting in papers. If the 
 case seems to the Sheriff to make this course desirable, there 
 is nothing in the statute to forbid it, and in practice written 
 papers are frequently ordered, although generally upon a short 
 inducise. 
 
 Appendix, s. 50. 7 Ed. VII. c. 51, s. 50. 
 
 5. The Initial "Writ. 
 
 303. Except as regards proceedings for service of heirs, 
 summary removings, and Small Debt proceedings, every action 
 (i.e., every civil proceeding) commences in the same form, 
 whether it is, as regards subsequent procedure, treated as an 
 ordinary action, or a summary cause, or a summary applica- 
 tion, or an appeal. It is imperative that " all actions shall 
 "be commenced by writ in the Form A." 
 
 Appendix, Rule 1-2, Form A. 2 & 3 Geo. V. c. 28. Sch. II. 
 
 7 Ed. VII. c. 51, Sch. I., Rule M'Dermott v. Ramsay, 9th Dec, 
 
 1. 1876, 4 R. 217.
 
 124 THE ACTION. 
 
 304. The statutory direction of the statutes requires all 
 actions to be "commenced by writ," and the interpretation 
 clause of the 1907 Ad defines " initial writ" as meaning " the 
 " statemenl of claim, petition, note of appeal, or other tlocu- 
 "ment by which the action is initiated." The form of the 
 writ consists of three parts — (a) the instance, (b) the crave, 
 and (c) the condescendence and note of pleas in law. There 
 is no further direct ion as to form, except that the crave is to 
 " sej forth the specific decree warrant or order asked," that 
 is to say, all that pursuer expects to find in his extract decree 
 if he is successful in the litigation. This, of course, implies 
 that the crave must be unambiguous and definite, and such as 
 is competent for the Sheriff Court to grant. 
 
 Appendix, Rule 1, Form A. 2 & 3 Geo. V. c. 28, Form A. 
 
 7 Ed. VII. c. 51, s. 3 (ft). 
 
 305. The one essential requisite of the initial writ is that, 
 within the four corners of it, shall be found the case, and 
 the whole case, which piirsuer lays. If there is no appearance 
 made Eor defender, the writ will be the only process, and the 
 judgment of the Court may simply be "decerns as craved." 
 That will warrant the insertion in the extract decree only of 
 warrant for diligence corresponding to the crave <oi the initial 
 writ. If, for instance, interest upon a money claim, especially 
 if interest is claimed from a date prior to the raising of the 
 action, and expenses of process, are sought, it will be wise 
 to include these in the crave of the writ, notwithstanding that 
 Form A of the 1913 Act does not, as the 1876 Act did, specially 
 direct that they must be craved for, and, despite the very doubt- 
 ful theory sometimes advanced that a decerniture for a principal 
 sum entitles the Court to decern also for interest, and the 
 other, also doubtful, theory that every Court of law has an 
 inherent right, without a special craving to that effect by the 
 litigant, to award to, or to withhold from, any litigant, 
 expenses in a judicial process. 
 
 Appendix, Form A. Edinburgh and Glasgow Canal 
 
 39 & 40 Vict. c. 70. Co. v. Carmich'ael, 1842 
 
 7 Ed. VII. c. 51, Sch. I., Rule (H.L.), 15 Jur. 193. 
 
 1. Donaldson v Findlay, 1864, 2 M. 
 
 2 & 3 Geo. V. c. 28. (ILL.) 86. 
 
 Shotts Iron Company v. Turn- 
 bull, 1870, 8 M. 383. 
 
 306. If a warrant to arrest on the dependence is wanted, it 
 should be asked for in the crave of the initial writ,
 
 THE INITIAL WHIT. [25 
 
 for it is extremly doubtful whether it is competent to 
 insert a warrant of arrestment in Hip first deliverance, it it is 
 not craved; and, even it it is craved, such a warrant I 
 necessarily, although it is usually, granted as matter of course. 
 It is, strictly speaking, competent only in an action with a 
 crave for payment of money, other than expenses; and even 
 in money claims a warrant for arrestment on the dependence 
 may he refused, if the debt is future or contingent, or is a 
 claim made in a consistorial action, and it is not special ly 
 averred thai the defender is vergens ad inopiam; or in 
 meditatione fugce; or is secreting his funds. 
 
 Stafford r. M'Laurin, 1875, 3 Mackenzie v. Ferrier, 1900, 7 
 
 R. 148. S.L.T. 316. 
 
 Symington v. Symington, 1875, Ellison v. Ellison, 1901, 4 F. 257. 
 
 3 R. 205. Muir r. Muir, 1910, 1 S.L.T. 
 
 Crerar v. Morrison, 1889, 9 R. 414. 
 890. 
 
 307. The writ which commences a civil proceeding of any 
 kind must be authenticated by the signature of the pursuer, 
 or his agent. If pursuer has, at that stage, a law agent 
 representing him, the agent's name and address are also to be 
 endorsed upon the service copy of the writ. This is a require- 
 ment not merely in the case where the writ is signed by an 
 agent, but in every case. Indeed, it is much more necessary 
 when the writ is not signed by the agent. The direction is 
 that " the name and address " (not the signature) " of pursuer's 
 " agent (if any) shall be upon the back of every service copy." 
 The agent whose name is to be put upon the service copy (for 
 the obvious purpose of informing the defender's agent, with 
 whom he is to communicate) is not necessarily the agent who 
 actually signs the writ, for any enrolled law agent may sign 
 a writ on behalf of another agent, but the agent who is 
 responsible for the issue of the writ. He must, of course, be 
 an agent who is enrolled for the Court which grants the first 
 warrant upon the initial writ, because applying for a warrant 
 is " practising " in that Court, and a law agent may not 
 practise in any Court unless he has subscribed the roll of that 
 Court. Besides, the warrant for service is endorsed upon the 
 initial writ itself, and in order to effect service the aeeni must 
 borrow the initial writ. Borrowing a process is practising in 
 the Court, and an agent can borrow a process only if he have a 
 place of business within the jurisdiction of the Court. 
 
 Appendix, Rule 3. 7 Ed. VII. c. 51, Sch. I., Rule 3. 
 
 36 & 37 Vict. c. 63, a. 13, 15.
 
 126 T1IK ACTION. 
 
 308. After a process lias been tabled, the initial writ 
 cannoi be borrowed, unless with the special permission 
 oJ the Sheriff. Nor can the principal interlocutor sheets be 
 borrowed. Formerly the terms of a losl interlocutor could 
 only be set up in an action of proving the tenor, because the 
 interlocutor sheet is not a "pleading," and the Sheriff ( nurts 
 Act of L876 only authorised a lost pleading to be replaced by 
 a copy; but the Sheriff Courts Act, 1907, sanctioned the sub- 
 stitution of a copy for any number of process which has gone 
 amissing, so that a lost interlocutor sheet might now be 
 replaced. 
 
 Appendix, Rules 16-17. Cofton v. Cofton, 1875, 2 R. 599. 
 
 7 Ed. VII. c. 51, Sch. I., Rules 
 16-17. 
 
 309. An initial writ must be presented, and a warrant on 
 it may be competently granted, only in the sheriffdom where 
 there is jurisdiction against the defender, and in the Court 
 of the appropriate district of that sheriffdom, where there are 
 more district Courts than one. "The Court" is not expressly 
 denned in the Sheriff Court Acts, but the initial writ obviously 
 suggests <li is leading, as do also several express enactments 
 in the statute itself, notably that extending the jurisdiction 
 of the Sheriff Court to actions relating to heritable right and 
 title, where the imperative direction is that such actions 
 " shall, if raised in the Sheriff Court, be raised in the Sheriff 
 "Court of the jurisdiction and district where the property 
 " forming the subject of dispute is situated." 
 
 Appendix, s. 5, Form A. 2 & 3 C4eo. V. c. 28. 
 
 7 Ed. VII. c. 51, s. 5, Proviso 1. 
 
 810. Accordingly a plea of no jurisdiction may be com- 
 petently stated when the action is brought in the wrong 
 district, as well as when it is brought in the wrong sheriffdom, 
 and the powers of transfer may be exercised to transfer a cause 
 from one district of the same sheriffdom to another, as well 
 as from one sheriffdom to another. 
 
 Tait v Johnston, 1891, 18 R. Davidson v. Davidson, 1891, 18 
 
 606. ' R- 884. 
 
 6. The Instanck. 
 
 311. "Pursuer" and "defender" were not defined in any 
 of the previous Sheriff Court Acts. In the 1907-1913 Acts,
 
 THE INSTANCE. 127 
 
 just as "initial writ" is used to include every kind of paper by 
 which a competent matter is brought before the Sheriff, bo 
 also the personality of the persons litigating is referred to by 
 the general terms ''pursuer" and "defender." But the 
 definitions of pursuer and defender should be read along with 
 that of "person," which includes firms, and Rule 11, which 
 entitles descriptive firms to sue or be sued. 
 
 The statutory definition includes joint pursuers or 
 joint defenders. But, before several persons can join as 
 pursuers, they must have a common ground of action. It is 
 not enough that each may have some kind of claim, personal 
 to himself, against the same defender. Where pursuers have 
 a joint cause of action, all must concur, or if one only sues 
 the others should be called for their interest, or intimation 
 should be made to them, so that they may have an opportunity 
 of sisting themselves. 
 
 Appendix, s. 3 (e) (?i) (o), Rule Smith v. New Rossleigh Cycle 
 
 11. Company, 1902, 10 S.L.T. 273. 
 
 7 Ed. VII. c. 51, s. 3. Grant v. Wood, 1902, 10 S.L.T. 
 
 Gibson v. Macqueen, 1866, 5 M. 296. 
 
 113. Killin v. Weir, 1905, 7 F. 526. 
 
 Duke of Buccleuch v. Cowan, Brims & Maekay v. Patullo, 
 
 1876, 4 R. (H.L.) 44. 1907, S.C. 1106. 
 
 Douglas v. Tait, 1884, 12 R. 10. Paxton v. Brown, 1908, S.C. 406. 
 
 Smith v. Wilsons & Clyde Com- Dundonald Parish Council v. 
 
 pany, 1893, 21 R. 162. Cunninghame Poorhouse Com- 
 
 Pollock v. Workman, 1900, 2 F. mittee, 1909, S.C. 829. 
 
 354. Ellerman Lines v. Clyde 
 
 Trustees, 1909, S.C. 690. 
 
 312. In la}dng an action against joint defenders, regard 
 should be had to the nature of their joint liability. If that 
 liability is constituted by writ, or if it arises ex delicto, any 
 one may be sued, otherwise all the joint obligants or joint 
 delinquents should be called. Regard should also be had to 
 whether any other persons than the direct defenders have an 
 interest, and, if so, such other persons should be called. 
 
 Nelson r. Wilson, 1890, 17 R. Sim v. Muir's Trustees, 1906, 8 
 
 608. F. 1091. 
 
 Mackinnon v. Mackinnon, 1905, Ellerman Lines v. Clyde Trustees, 
 
 7 F. 589. 1909, S.C. 690. 
 
 313. More persons than one may be sued as joint defenders, 
 if they are joint obligants, or joint delinquents. Although 
 the fault or negligence of two or more persons may have been 
 different in kind, they may be sued jointly, if they have by 
 their collective wrongdoing caused loss and damage to pursuer. 
 AVhen an action has been laid against joint defenders, it may
 
 128 THE ACTIOX. 
 
 competently proceed against one or more of thein, although 
 it may have been found irrelevanl against others. But if a 
 defender gets out, and is found entitled In expenses, the case 
 should he continued till these have been (axed, so that this 
 cider can procure extract. If it is not continued, and the 
 ease is transferred to the Court of Session by the defenders 
 who remain in, the defender who has got out cannot get his 
 extract Eor his expenses in the Sheriff Court, and may have 
 to be at the trouble and expense of seeking a decree of new in 
 the Court of Session. 
 
 Scott ish Wholesale Co-operative Mackenzie v. Macallister, 1909, 
 
 Society, Ltd. r. Glasgow S.C. 367. 
 
 Fleshers' Association, 1898, 35 Allen v. M'Combie's Trustees, 
 
 S.L.R. 645. 1909, S.C. 710. 
 
 Hook v. M'Callum, 1905, 7 F. Goodall v. Forbes, 1909, S.C 
 
 528. 1300. 
 
 Fleming v. Gemmill, 1908, S.C. Gavin v. P. Henderson & Com- 
 
 340. pany, 1910, S.C. 357. 
 Cathcart v. Scott, 1908, 25 
 
 S.C.R. 17. 
 
 314. The deli nil ions of the Sheriff Courts Acts, however, 
 are not to he construed as meaning that every person whose 
 name appears in the instance is necessarily a party to the 
 cause, in the sense of being liable in expenses to the other 
 parties. It may be necessary to set forth that pursuer sues 
 with consent of some person, who has himself no beneficial 
 interest in the result of the litigation, or it may be necessary 
 to call, along with a defender, some person who has an ex facie 
 legal, or a probable personal, interest; but such persons are 
 not litigants in the strict sense, and, in general, neither a 
 consenter nor a party merely called for his interest, thereby 
 incurs liability for expenses. 
 
 315. Special cases may occur in which the facts and circum- 
 stances may warrant such a party being held liable in expenses, 
 as, for instance, when it appears in the course of the proceed- 
 ings that he is the dominus litis. The fact that such a person's 
 name appears in the instance makes it competent for the Court 
 to give judgment against him for expenses; but the Court 
 will not readily do, unless where a person who is merely called 
 for his interest elects to appear, and states a defence which is 
 unsuccessful. 
 
 Campbell v. M'Alister, 1893, 1 Aberdeen Harbour Com- 
 
 S.L.T. 14. missioners v. Adam, 1909, 2 
 
 S.L.T. 385.
 
 THE INSTANCE. L29 
 
 316. Both pursuer and defender must in the instance be 
 clearly identified. But the latitude for designation of the 
 parties in an action is now considerably broadened by the 
 extended meaning- assigned to " person," and the general rule 
 may be taken now to be that parties are sufficiently designed 
 in a Court process if they are designed in the manner in which 
 they commercially, or socially, are in use to design themselves. 
 If any error occurs, the powers of correction under the Sheriff 
 Courts Acts are much more extensive than they previously 
 were, and apply both in undefended and defended causes. 
 The power to amend includes " amendment of the instance and 
 " the initial writ and the adding of parties." 
 
 Appendix, Rules 11, 79. Edinburgh Property Society v. 
 
 7 Ed. VII. c. 51, s. 3 (e), Sch. White, 1906, 8 F. 903. 
 
 I., Rule 79. 
 
 317. It is to be observed, however, that the amendment 
 power, whilst it sanctions adding a party, does not countenance 
 an amendment which is really the substitution of a new defender 
 for the defender originally called. That would be making the 
 action a different action, not amending it. If the wrong- 
 defender altogether has been called, the instance is radically 
 bad, and cannot be cured by amendment. But if the instance 
 is good so far as it goes, but is incomplete, because others ai;e 
 interested besides the defender who has been called, then the 
 instance may be amended by adding such other parties, instead 
 of bringing a supplementary action as was formerly necessary. 
 
 Appendix, Rule 79. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 79. 
 
 318. A nominal pursuer, who is not the true litigant, may 
 be required to disclose the real dominus litis, and when dis- 
 closed the Court may require him to be sisted as a party to 
 the cause. A defender who moves that a party be sisted 
 on this ground, of course, takes the risk of being found liable 
 in expenses to such party, if it turns out that he is not the 
 real dominus litis. It should be clearly ascertained before 
 such a motion is made that there are reasonable grounds for 
 believing that such party is the dominus litis for who may be 
 required so to be sisted, is, in each case, a question of circum- 
 stances. The general definition of a dominus litis is "a party 
 " with a direct interest in the subject matter of the litigation, 
 
 9
 
 130 Till-: ACTION. 
 
 "having the control and direction of the suit, with power to 
 "retard it, or push it on, or pui an end to it altogether." 
 The mere circumstance that a party is giving a pursuer 
 financial aid to carry on a litigation does not of itself infer 
 thai the financier is the dominus litis. 
 
 Mathieson v. Thomson, 1853, 16 Robertson v. Duke of Athole, 
 
 I) L9 (Lord Rutherfurd). 1905, 48 S.L.R. 601. 
 
 Potter v. Hamilton, 1870, 8 M. M'Cuaig v. M'Cuaig, 1909, S.C. 
 
 1064. 355. 
 
 Frazer v. Macgregor Malloch, 
 1896, 23 R. 619. 
 
 319. It is competent for a defender to move for a dominus 
 
 litis being sisted at any time before expenses have been 
 
 decerned for. The defender must be prepared to satisfy the 
 
 (Hurt that the party proposed to be sisted is truly the dominus 
 
 litis, and upon this it may sometimes be necessary to allow a 
 
 proof. If the dominus litis is not discoverable, but the nominal 
 
 pursuer is obviously acting for others, as, for instance, a person 
 
 of no substance put forward to vindicate a right in which he 
 
 has himself only a nominal interest, he may be required to find 
 
 caution. 
 
 Jenkins r. Robertson, 1869, 7 Hepburn v. Tait, 1874, 1 R. 
 
 M. 739. 875. 
 
 320. If a party is ordered to be sisted as a dominus litis, 
 and that is not done, the nominal pursuer of the action is 
 barred from proceeding further with it, and the defender may 
 then move for absolvitor, or that the action be dismissed, upon 
 the ground that an order made by the Sheriff hag not been 
 implemented. Expenses may be granted against the nominal 
 pursuer, who is in the process, but not against the party 
 ordered to sist himself, for he is not as yet in the process, 
 and no decree, for expenses or otherwise, can be granted 
 against one who is not a party. The dominus litis, however, 
 may be liable to recoup the defender for the expenses incurred, 
 and if the defender fail to recover the same from the nominal 
 pursuer he may sue the dominus litis in a separate action for 
 payment thereof. 
 
 Appendix, Rule 56. Frazer v. Macgregor Malloch, 
 
 7 Ed. VII. c. 51, Sch. I., Rule 1896, 23 R. 619. 
 
 56. 
 
 321. When the pursuer sues in other than his personal
 
 THE INSTANCE. L31 
 
 character, the capacity in which he sues, and his title to sue 
 in that capacity, must be set forth, as, for instance, an executor 
 (who may sue although not yet con firmed, but must produce 
 his confirmation in process before he can obtain extract); or 
 a body of trustees (who may sue by the quorum authorised by 
 the deed of trust or by a majority accepting); or an assignee; 
 or the like. The pursuer's special character may conveniently 
 be expressed in the instance when the special character is 
 descriptive, as, for instance, a trustee in bankruptcy or a 
 curator bonis; but where the pursuer's title requires explana- 
 tion, as, for instance, in the case of an assignee, it will be 
 more convenient to set forth the particulars in the conde- 
 scendence. Thus, a pursuer who sues for an assigned debt 
 would design himself as A B, assignee of C D, in the instance, 
 and in the condescendence would narrate that the debt sued for 
 had been incurred to C D and assigned to A B conform to title 
 set forth. 
 
 Maitland v. Cockerell, 1827, 6 Bluick's Trustees v. Hope's 
 
 S. 109. Trustees, 1854, 16 D. 482. 
 
 322. In like manner, if a defender is sued in a representa- 
 tive or special character, that also must appear in the instance, 
 and the crave will be for decree against defender in his repre- 
 sentative character, not in his personal character, and decree 
 should be craved against him in his representative character 
 only, unless for some special reason lie is also liable personally. 
 
 323. The mode in which the instance will be expressed is 
 as varied as the circumstances in which litigation may arise. 
 The latitude allowed by the Sheriff Court Acts is now, however, 
 so wade that no instance is likely to be regarded as inept which 
 clearly identifies the person, or firm, or corporation which is 
 suing or being sued, and which also clearly indicates the 
 character in which a defender is sued. 
 
 Appendix, s. 3 (e), Rule 11, 7 Ed. VII. c. 51. s 6. 
 
 Form A.
 
 CHAPTER VI. 
 SERVICE. 
 
 1. "Warrant of Citation. 
 
 324. Before the Court can entertain any action (other than 
 a summary application which is disposed of de piano) it must 
 be served upon the defender. That it he validly served, is as 
 essential to the sufficiency of the action, as that it be properly 
 laid, indeed, more so, because an error in the instance or the 
 statement of a case can be cured by amendment at any stage 
 of the cause, but error in the service, if not timeously noticed 
 and corrected, might be fatal to the action. The first step in 
 effecting service is to obtain a warrant. This is in practice 
 written upon the initial writ, which is obviously convenient, 
 although there is no statutory enactment on the subject. A 
 warrant of citation is in general signed by the Sheriff-clerk, 
 but any warrant may be signed by the Sheriff himself, and the 
 following must be so signed (a) altering normal inducise, (b) 
 granting interim interdict, (c) granting warrant to sequestrate 
 for rent, (d) any warrant other than the usual one for citation 
 and arrestment. Thus, for instance, the Sheriff-clerk may 
 sign a warrant to arrest a ship, but if a warrant to dismantle 
 is also sought, that must be signed by the Sheriff. 
 
 Appendix, Rule 7. 7 Ed. VII. c. 51, Sch. I.. Rule 
 
 7. 
 
 325. The Act of 1907 introduced a distinction in the forms 
 of warrant which requires attention at this initial stage of 
 the case. In an ordinary action the defender is required, if he 
 intend to defend, to lodge a notice of appearance. In every 
 other kind of application, where citation is necessary, he is 
 required to attend and answer at a fixed time and place. There 
 is no statutory time limit for service ; but a warrant of service 
 is by recognised practice regarded as inept after the lapse 
 of a year and day. Where arrestment on the dependence has
 
 WARRANT OF CITATION. 133 
 
 been used prior to service, it falls if the action is not served 
 within twenty days. 
 
 Appendix, Rules 4, 127. 2 & 3 Geo. V. c. 28, s. 127. 
 
 7 Ed VII. c. 51, Sch. I., Rule 
 4, Forms B and C. 
 
 2. Induciae. 
 
 326. The normal induciae of citation is seven days. But 
 when the defender is in Orkney or Shetland, or any of the 
 islands of Scotland, the normal induciae is fourteen days. It 
 is so also in the case of edictal citation. But the only statutory 
 restriction is that the induciae is in no case to be less than 
 forty-eight hours. With this qualification, the Sheriff may 
 shorten or extend the normal induciae. 
 
 Appendix, Rules 5, 6. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 5, 6. 
 
 327. The normal induciae is the same in an ordinary action 
 and in a summary cause. But summary applications, where 
 service is necessary, are generally served upon a short induciae 
 of from two to four days. In cases of sequestration for rent it is 
 also a common practice to shorten the induciae. The power to 
 shorten the induciae formerly existed. The power to extend it 
 is new, but is not likely to be exercised unless in exceptional 
 circumstances, as, for instance, in an action where parties are 
 called who may be abroad at the moment. 
 
 Appendix, Rule 6. Muir v. Nisbet, 1881, 19 S.L.R. 
 
 7 Ed. VII. c. 51, Sch. I.. Rule 59. 
 
 6. 
 
 3. Execution of Citation. 
 
 328. Formal citation is not always necessary. The defender 
 or his agent may accept service. He may also dispense with 
 induciae. When service is accepted, a docquet to that effect, 
 holograph of the defender or of his agent, is endorsed upon the 
 initial writ, and such a docquet is equivalent to an execution 
 of citation. AVhere a defender obstructs formal service, but 
 is in knowledge of the process raised against him, the want of 
 formal execution of citation may not prevent decree being 
 granted. The date of commencement of an action is the 
 date of the acceptance of, or execution of, service, for no action 
 can be regarded as initiated until it has been served. An
 
 134 SERVICE. 
 
 exception to this rule is a bankruptcy process, in which the 
 date of commencement is the date of the first deliverance. 
 
 Alston r. M'Dougall, 1887. 15 C.ihson v. Clark, 1895, 23 R. 
 
 R. 78. 294. 
 
 Busby v. Clark, 1904, 7 F. 162. 
 
 329. Prior to 1882 there was only one mode of effecting 
 service, viz., by an officer of Court, who required to carry the 
 original writ, and exhibit it if asked. The Citation Amendment 
 Act of 1882 introducer] postal service, which is the form now 
 most commonly in use That statute, however, expressly 
 reserved the existing law and practice as regards citation, so 
 that postal citation, or citation by officer, is optional. The 
 execution of citation is to be " appended to or endorsed upon 
 " tho initial writ," a direction which is complied with by 
 gumming a printed form to the writ. Personal citation can 
 be effected only by an officer. Where personal citation is not 
 essential, postal citation may be made either by an officer or 
 by an enrolled law agent, even although the agent is a party 
 in the cause. 
 
 Appendix, Rule 8. Addison v. Brown, 1906, 8 F. 
 
 45 & 46 Vict. c. 77, s. 6. 443. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 8. Hunter. 1908, 15 S.L.T. 716. 
 
 330. The question has been raised whether any law agent 
 in Scotland may execute a citation to any Sheriff Court, 
 whether he is enrolled at that particular Court or not. Under 
 the Sheriff Courts Act, 1907, citation by post, if made by an 
 officer, may be made either by an officer of the sheriffdom 
 whence the warrant issues, or by an officer of the sheriffdom 
 where service is to be made. But this choice does not extend 
 to citation made by a law agent. That appears to be still 
 regulated by the Law Agents Act of 1873 and the Citation 
 Amendment Act of 1882, so that, before a law agent can 
 competently execute a warrant of citation, he must not only 
 be an enrolled law agent generally, in the sense of having his 
 name on the register kept at Edinburgh under section 11 of the 
 Law Agents Act, but must also be an enrolled law agent 
 particularly, by having, under section 16 of the Law Agents 
 Act, subscribed the local roll of law agents practising in the 
 particular Court whence the warrant issues. 
 
 Appendix, Rule 10. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 36 & 37 Vict. c. 63, s. 11. 16. 10. 
 
 45 & 46 Vict. c. 77, s. 3.
 
 EXECUTION OF CITATION. L35 
 
 331. This matter depends upon whether, in executing a 
 warrant of citation, a law agent is " practising " in the 
 
 of the Law Agents Act. A law agent is a person entitled to 
 practise in the Sheriff Court. But before he can practise, 
 he must have signed the local roll of some particular Court. 
 When a law agent cites a defender to attend a particular 
 Court, he is doing something which (if an officer is not 
 employed) only a law agent can do. And, when doing some- 
 thing which only a law agent can do, he is "practising" as 
 a law agent. Besides, if he is not enrolled in the local Court, 
 the Sheriff-clerk has no means of knowing whether the person 
 who signs the execution of citation is a law agent or not. The 
 Sheriff -clerk must know whether an action has been ex facie 
 validly served, for upon him devolves the duty of enrolling 
 the case for tabling. The tabling date is regulated by the 
 inducise. The Sheriff-clerk must know that the action has 
 been validly served, before he can know thai the inducise has 
 expired, and, unless the signatory is a local, as well as a 
 general, enrolled law agent, the Sheriff-clerk has no means of 
 checking the validity of the citation in this particular. 
 
 Appendix, Rule 34. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 36 & 37 Vict. c. 63. 34. 
 
 Kerr, 1906, 14 S.L.T. 412. 
 
 332. There are certain statutory requisites which must be 
 observed in postal citation, whether made by a law agent or 
 an officer — (a) the citation must specify the date of posting ; 
 (b) on the envelope containing the writ there must be a written 
 or printed notice stating that it contains a Court citation, and 
 giving the name and address of the Sheriff-clerk to whom it is 
 to be returned if delivery cannot be made; (c) the citation, 
 when it does not require the defender to appear and answer 
 at a fixed date, must set forth that the inducioe is reckoned 
 from twenty-four hours after the date of posting mentioned ; 
 (d) a copy of the initial writ, and a copy of the warrant of 
 citation, must accompany the citation; and (e) the letter con- 
 taining the citation must be registered, and the post office 
 receipt for the registered letter must accompany the execution 
 of citation, because the date of the post office receipt is the 
 date of the commencement of the action. 
 
 Appendix, Rule 8. Alston v. M'Dougall, 1887, 15 R 
 
 45 & 46 Viet. c. 47, s. 4. 78. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Gibson v. Clark. 1895, 23 R. -204. 
 
 8, Form D. Addison v. Brown, 1906, 8 F. 
 
 443.
 
 136 SERVICE. 
 
 333. The Citation Act of 1882 did not provide a form of 
 citation, but directed only the form of execution of citation. 
 The Sheriff Courts Act, 1907, provided a form of citation, an 
 well as a form of execution, which is directed to be " appended 
 "to or indorsed upon the initial \\ril." These must now, of 
 course, be observed. The general direction in the form of 
 execution in the 1907 Act to " set forth the mode of service " 
 practically embodies that of the Citation Amendment Act, when 
 the citation is made by post. 
 
 Appendix, RuIp 8. Forms D, E. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 45 & 46 Vict. c. 47, Sch. I. 8. Forms D and E. 
 
 334. In all warrants upon actions directed against a 
 defender furth of Scotland, the Sheriff-clerk should be asked to 
 insert a warrant to cite edictally, for edictal citation is not, 
 competent unless the warrant expressly authorises it. 
 
 Appendix, Rule 7. Miller Petition, 1853. 16 D. 109. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 7. 
 
 335. Although edictal citation is in general appropriate only 
 when a defender is furth of Scotland, it may in other special 
 circumstances be competent, as, for instance, when a defender's 
 friends refuse to disclose his whereabouts. An edictal citation 
 may stand, even although it afterwards transpires that the 
 defender was at the time within Scotland, if he has so acted as 
 to reasonably induce the belief on the part of the pursuer that 
 he had gone furth of Scotland. Whether the citation is good 
 is entirely a question of circumstances. 
 
 Sandbach v. Caldwell, 1825, 4 S. Clark Kennedy v. Clark Ken- 
 
 173. nedy, 1908, 16 S.L.T. 66. 
 
 Robertson v. M'Culloch, 1836, 
 14 S. 950. 
 
 336. The edictal citation provision of the Sheriff Court Act 
 of 1876 (which was repeated in the Act of 1907) was adopted 
 in the Small Debt Amendment Act of 1889, and the corre- 
 sponding rule in the Sheriff Courts Act, 1907, is also made 
 applicable to Small Debt procedure; so that edictal citation 
 is now competent in a Small Debt as well as an ordinarv Court 
 process. Leaving a summons with a servant is also now good 
 service of a Small Debt summons; but, although a defender 
 may not be furth of Scotland, there may at the moment be 
 nobody in his premises to receive a writ, in which event it is
 
 EXECUTION OF CITATION. 137 
 
 competent for the officer, under the Citation Act of 1871, to 
 leave the writ on the door of defender's premises, and also 
 send a duplicate by post to defender's last known address, or 
 to any address which the officer, " after diligent inquiry, may 
 " deem most likely to find the defender." 
 
 Appendix, s. 45, Rule 15. 52 & 53 Viet. c. 26, s. 5. 
 
 34 & 35 Vict. e. 42, s. 2. 7 Ed. VII. c. 51, s. 45, Sch. I., 
 
 39 & 40 Vict. c. 70, s. 9. Rule 15. 
 
 337. Edictal citation may be made at the office of the 
 Keeper of Edictal Citations, either by delivery there of the 
 citation, or by transmitting it by post. If the citation is postal, 
 the registered letter is addressed to the Keeper of Edictal 
 Citations in Edinburgh. Where the defender has no known 
 address in the United Kingdom, service upon the Keeper of 
 Edictal Citations in Edinburgh is sufficient; but, if the 
 defender has a known address in England or Ireland, a dupli- 
 cate postal citation is sent to that address, and the execution 
 of citation must bear that this has been done. 
 
 Appendix, Rule 15. 7 Ed. VII. c. 51. Sch. I.. Rule 
 
 45 & 46 Vict c. 77, s. 3. 15. 
 
 338. The signature of a law agent alone to the execution of 
 postal citation is sufficient, but it must be the personal signa- 
 ture of the law agent who made the citation. One law agent 
 may sign an initial writ on behalf of another, but one law 
 agent may not sign an execution of citation for another. Nor 
 can the execution be signed by a clerk for a law agent, even 
 if the letter had been actually registered and posted by that 
 clerk. An execution of citation by an officer must in general 
 be attested by one witness, but this is dispensed with when 
 the officer's citation is made by post. 
 
 Appendix, Rule 9. Wilson, 1885, 13 R. 342. 
 
 45 & 46 Vict. c. 77, s. 3, 4, Addison v. Brown, 1906, 8 F. 
 
 Sch. 1. 443. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 
 9, Form E. 
 
 339. The provisions of the Citation Act of 1882, as to where 
 the registered post letter is to be directed, are somewhat involved, 
 but, read along with the Sheriff Courts Act, 1!)07, it seems now 
 quite clear that the place to which the letter is to be directed 
 is the place where an officer in person might legally effect 
 service upon an addressee. Under whatever designation, and
 
 138 SERVICE. 
 
 at whatever address, an officer could personally make service 
 upon a defender, Bervice may also validly be effected by posting 
 a registered Letter bearing iliat designation and address, unless 
 where personal service is a statutory requisite. 
 
 Appendix. Rules 8-15. 7 Ed. VII. c. 51, s. 6, Sch. I., 
 
 45 & 46 Vict. c. 77. s. 3. Rules 8, 11, 14, 15. 
 
 340. It the postal letter cannot be delivered, the Citation 
 Amendment Act directs the post office officials to return it 
 "immediately" to the Clerk of Court; but "immediately"' 
 is a relative term, and it is quite possible that a letter may 
 not be delivered, and yet not be returned to the Sheriff-clerk 
 within the inducise. In that ease, of course, pursuer, at the 
 first calling, may move for decree in absence, because ex facie 
 the service has been validly effected. If the letter has not 
 been delivered, because the defender has not been found at 
 the address upon it, that is to say, in post office phraseology, 
 if the letter is returned marked, " Gone, no address,'' then the 
 action has not been served, and the Sheriff-clerk is by the 
 Citation Act directed to notify the return of the letter to " the 
 "party at whose instance the summons, warrant, or intima- 
 " tion was issued or obtained." The Court may then order 
 re-service, and substitute a now diet of appearance. In practice 
 an ordinary action is usually re-served by an officer, so soon 
 as it is so returned through the post office. In a summary 
 cause, if there is not time to re-serve before the appointed diet 
 of compearance, a warrant for re-service for a fresh diet is 
 asked. 
 
 45 & 46 Vict. c. 77, s. 4 (5). 
 
 341. Where the letter is returned, not because the defender 
 is not at the address upon it, but because the defender, or 
 others for him, refused to accept delivery of it, that is to say, 
 in post office phraseology, when it is returned marked 
 " Refused," an order for re-service does not follow as matter of 
 course. If the Sheriff is satisfied that the letter has been 
 tendered at the proper address, he may hold the tender as 
 equivalent to delivery. In that event, the action has been 
 served, and decree in absence may follow upon it. 
 
 45 & 46 Viet. c. 77, s. 4 (5). Spaulding v. Marjoribanks, 1903, 
 
 Roberts v. Crawford, 1884, 22 11 S.L.T. 35. 
 
 S.L.R. 135.
 
 EXECUTION OF CITATION. L39 
 
 342. Postal citation does not cover every variety of 
 circumstances, and in many cases the only safe mode will still 
 be citation by an officer. The personal service, which is 
 necessary to found jurisdiction, can only be made in this way. 
 Leaving a writ in the hands of a servant is not com- 
 pliance with the statutory requirement of personal service 
 to found jurisdiction. Even when it is not used to found 
 jurisdiction, personal citation is always the best, and often 
 the only satisfactory mode. Keyhole citation also can only 
 be made by an officer. This never satisfactory mode still 
 subsists as a competent mode of citation in any process other 
 than one under the Small Debt Acts. As regards Small Debt 
 procedure, it was abolished in 1871. There was substituted 
 for it a form of service somewhat akin to that of edictal postal 
 citation, or, rather, a combination of lockhole and postal 
 citation: and this is valid service in a Small Debt process 
 where the defender " is refusing access or concealing himself 
 " to avoid citation or service, or has within a period of forty 
 " days removed from the house or premises occupied by him, his 
 " place of dwelling for the time not being known." 
 
 Appendix, s. 6 (6), (f), (%) 34 & 35 Vict. c. 42, s. 2. 
 
 1 Vict. c. 41, s. 3. 7 Ed VII. c. 51, s. 6 (b), (/"), (i). 
 
 343. When service is made by an officer, it may be made 
 in various ways, (a) The copy of the writ may be delivered 
 into the hands of the defender; (J>) or it may be left with a 
 servant ; (c) or it may be affixed to the door of defender's 
 premises if the officer cannot obtain access after giving six 
 (no more and no less) audible knocks. In all cases of citation 
 by an officer (other than a citation upon a Small Debt summons, 
 or a summary removal complaint), at least one witness must be 
 present, and must sign the execution along with the officer. 
 The execution must state whether the citation was personal or 
 otherwise, and the mode of it, if not personal. A defender 
 has been personally cited if he has been found, and the writ 
 has been tendered to him, although he has not actually had it 
 in his hands, because he refused to take it. 
 
 Appendix, Rules 8, 9. 7 Ed. VII. c. 51, Sch I., Rule 
 
 Act 1540. c. 75. 9, Form E. 
 
 Bushy v. Clark, 1904, 7 F. 162. 
 
 344. A " servant "' has never been defined. In the citation
 
 140 SKIIYICE. 
 
 sense, any intelligent person who is found within the house 
 or premises at which the citation is to be made is regarded as 
 the servanl or representative of the defender, for the purpose of 
 rece ring the citation from the officer. If nobody will handle 
 the citation, it should at a house be affixed to the door, or put 
 into ill.- keyhole, and on board ship affixed to the mast. The 
 defender's law agent is not his servant in the citation sense, 
 and leaving a writ with a defender's law agent, or other 
 person elsewhere than on defender's premises, is not effecting 
 valid citation, unless where intimation to the law agent of a 
 party is specially ordered, as it sometimes is, or the party to 
 be served expressly agrees that intimation to his agent shall be 
 accepted as equivalent to intimation to himself. 
 A r. B, 1834, 12 S. 347. 
 
 345. There is a specialty in regard to citation in consistorial 
 
 cases, which is of some interest in the Sheriff Court, now that 
 
 actions of separation and aliment and adherence and aliment 
 
 are competent there. The Conjugal Rights Amendment Act 
 
 of L861 directed that, in a consistorial cause service upon a 
 
 non-resident defender must be personal, unless the Court should 
 
 specially authorise edictal citation. The Court of Session Act 
 
 of 18G8 provided that the personal service thus required might 
 
 be executed by delivery of the service copy of the writ to the 
 
 defender by any person " duly authorised by the pursuer," and 
 
 a certificate by such person to the effect that delivery had been 
 
 so made, was declared to be equivalent to a formal execution 
 
 of citation. As, however, an officer cannot act if he has an 
 
 interest in the action to be served, the " person " whose delivery 
 
 of the writ is equivalent to the officer's service must presumably 
 
 be a disinterested party. These provisions have not been 
 
 repealed, and may upon occasion be useful, although with the 
 
 present-day citation facilities it is not likely that they will be 
 
 often resorted to. 
 
 24 & 25 Vict. c. 80, s. 10. Dalgleish v. Scott, 1822, 1 S. 
 
 31 & 32 Vict. c. 100, s. 100. 506. 
 
 346. Citation by officer has been greatly simplified by the 
 legislation of the last seventy years. Originally a Sheriff's 
 warrant of citation had effect only within his sheriffdom. If 
 the defender resided outwith that sheriffdom, the clumsy 
 expedient had to be resorted to of obtaining letters of supple-
 
 EXECUTION OF CITATION. 1 1 1 
 
 inent under the Signet. This became unnecessary in 18-38, 
 when a Sheriff's warrant was made effective in another 
 sheriffdom, if endorsed by the Sheriff-clerk of the sheriffdom 
 where it was to be executed. In 1876 the endorsation incon- 
 venience also was partially dispensed with as regards service 
 warrants. The Sheriff Courts Act, 1907, abolished endorsation 
 as regards all warrants of citation and arrestment. It also 
 declared that any such warrant may be executed either by an 
 officer of the Court which granted the warrant or by an officer 
 of the Court where it is to be executefd. Formerly two 
 witnesses were necessary to attest an officer's citation. The 
 Act of 1838 and relative Act of Sederunt of 1839 had made 
 one sufficient, and the Sheriff Courts Act, 1907, also adopts 
 this, but a witness is dispensed with in a Small Debt or 
 summary removing process. Any person not under fourteen 
 years of age is a competent witness. 
 
 Appendix, Rules 9. 10. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 1 Vict. c. 41, s. 3. 9, 10. 
 
 1 & 2 Vict c. 119, s. 24. Davidson r. Charteris, 1758, Mor. 
 
 39 & 40 Vict. c. 70, s. 12 (1). 16899. 
 
 347. Citation may be competently made only upon a lawful 
 
 day, and should, unless in exceptional circumstances, be made 
 
 within reasonable hours. A fugse warrant (now almost 
 
 obsolete) was an exception to this rule, for it might be executed 
 
 at any hour, and upon Sunday. The attesting witness must be 
 
 actually present at the citation, as he is required to sign the 
 
 execution along with the officer. When an action is served, 
 
 but nothing more is done for a year and a day, the instance 
 
 falls. 
 
 Appendix, Rule 9. Oliphant v. Douglas, 1633, Mor. 
 
 7 Ed VII. c. 51, Sch. I., Rule 9. 15002. 
 
 Act of Sederunt, 8th July, 1831, M'Kidd v. Manson, 1882, 9 R. 
 
 s. 3. 790. 
 
 348. If an irregularity occurs in citation, the remedy is 
 not to amend it, as in the case of error in the initial writ. The 
 remedy is to repeat the citation. "Where the authority of the 
 Sheriff is required for re-service, it will be granted as matter 
 of course when an attempt at citation has been made and has 
 failed. But where the failure to serve is owing to carelessness, 
 authority may not be granted, or conditions may be attached 
 to granting it, because statutory citation rules are peremptory, 
 and if the statutory directions have not been observed, the
 
 142 >i:i;\ ici:. 
 
 citation is not merely irregular, but is altogether bad. In 
 a summary cause, lor instance, a pursuer may obtain a 
 warrant to cite defender for a particular diet. If he tries to 
 do so. ami tails, the Sheriff will probably grant a warrant for 
 re-service for a new fixed diet; but it the pursuer, after 
 obtaining his warrant makes no effort to serve it, but simply 
 lits it lie lill it is ion late to execute it, re-service upon the 
 same warrant is not competent, and the proper course is for 
 the Court to grani a fresh warrant of citation upon payment 
 afresh of the appropriate Court dues. A party who appears 
 may not plead irregularity id' service, for " his appearance 
 " shall be deemed to remedy the defect unless where jurisdiction 
 "has been constituted by citation or by arrestment ad 
 " fundandam jurisdictionem." But this applies only to the 
 defender called, not to defenders who may be sisted. 
 
 Appendix, Rules 12, 13. Sharp v. Garden, 1822, 1 S. 314. 
 
 7 Ed. VII. c. 51, Sch. I., Rules Morrison v. Vallance's Execu- 
 
 12, 13. tors, 1907, S.C. 999. 
 
 Countess of Cassilis v. Earl of Muir r. Weir, 1910, 27 S.C.R. 
 
 Roxburgh, 1679. Mor. 3695. 151. 
 
 •*549. An execution of citation is not a "writing-" within 
 the meaning of Rule 50 of the Sheriff Courts Act, 1907, so that 
 it cannot be challenged ope e.rcc ptionis. Within the value 
 limit, it might, perhaps, be possible to raise the question of the 
 validity of a citation in a suspension process in the Sheriff 
 Court; but, as a general rule, the only way in which an ex 
 facie regular citation may be challenged is by action of reduc- 
 tion in the Court of Session. AYhere jurisdiction has been 
 constituted by the citation, a party may, in the process, of 
 course, challenge the citation, but the general rule is that a 
 party who appeals waives his right to challenge it. 
 
 Appendix, Rule 13. Tait v. Johnston, 1891, 18 R. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 606. 
 
 13. 
 
 350. The mere fact that a particular mode of citation is 
 competent, does not necessarily inter that that particular mode 
 should be adopted in all circumstances. Postal citation, for 
 instance, may be competent, and in general there is no better 
 method of ensuring that a writ gets into a defender's hands 
 than posting it to his known address. But circumstances may 
 exist which indicate that a post letter is unlikely to reach the 
 party to whom it is addressed. It is the duty of a pursuer
 
 EXECUTION OF CITATION. 143 
 
 to use the best means to ensure that the defender is made 
 aware that an action has been raised against him, and it may 
 be that service by an officer is desirable even at considerably 
 more expense than postal service. If the circumstances 
 warrant a more expensive, rather than a less expensive, mode 
 of citation, the more expensive method will be sanctioned as 
 party and party costs. 
 
 45 & 46 Vict. c. 77, s. 6. M'Leod v. Davidson, 1887, 14 R. 
 
 298. 
 
 351. In whatever mode citation is effected, it must be 
 strictly construed. If personal service, for instance, is neces- 
 sary, nothing short of actual delivery of the writ to the 
 defender will suffice. Even in the case of a lunatic, it is not 
 sufficient that the service copy be left with the superintendent 
 of an asylum, or with the doctor. It must be given to the 
 lunatic himself. 
 
 M'Gregor, 1848, 11 D. 285.
 
 CHAPTER VII. 
 UNDEFENDED CAUSE. 
 
 1. Decree. 
 
 352. To obtain decree iu absence, the procedure is the same 
 in an ordinary action and in a summary cause. The pursuer 
 endorses on the initial wrii a minute craving decree in absence. 
 There is however, this difference, that an ordinary action 
 become^ an undefended cause immediately upon the expiry of 
 the induciae, if, within the induciae period, the defender has 
 not lodged a notice of appearance. The case does not require 
 to be called in Court, and the pursuer need not wait for a 
 sitting of the Court. He may at any time within a year and 
 a day after the induciae has expired put on his minute craving 
 decree in absence, and the Sheriff may grant decree, but if 
 arrestment on the dependence has been used prior to service, 
 it falls if the decree in absence is not taken within twenty days 
 of the expiry of the induciae. In a summary cause, the fixed 
 date of compearance must arrive before it is known whether 
 or not the action is undefended. The action must accordingly 
 be called on the appointed day. If the defender do not then 
 appear, decree in absence may be granted. 
 
 Appendix, Rules 23, 83, 127. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7 Ed. VII. c. 51, Sch. I., Rules 
 23, 83. 
 
 353. There is one class of action, now competent in the 
 Sheriff Court, which is an exception to the general rule that 
 the non-appearance of the defender warrants decree in absence 
 being immediately granted. This is the consistorial class, 
 including actions of separation and aliment, adherence and 
 aliment, interim aliment, or for regulating custody of children. 
 There is a statutory direction, in the Court of Session Act of 
 1830, that in this class of case decree is not to be granted 
 until pursuer has "substantiated" her case. There is no 
 similar express direction in the Sheriff Courts Act, 1907, and it is
 
 DECREE. 145 
 
 inferred ratter than directed in the Act of 1913 ; but the Court of 
 Session practice is followed in the Sheriff Court. A diet is 
 fixed for the pursuer to lead evidence to support her averments. 
 But, of course, if decree is granted after this inquiry, it is still 
 a decree in absence. If as sometimes happens, the defender 
 appears at this diet, the pursuer's evidence is not then heard. 
 The defender may be allowed to lodge a notice of appearance, 
 and the case may then be sent to the roll as a defended cause. 
 It is not appropriate to repone the defender, for as yet no 
 decree in absence has been pronounced. 
 
 Appendix, Rule 23 (Proviso). Grant v. Grant, 1908, 24 S.C.R. 
 
 11 Geo. IV. & 1 Will. IV. c. 69, 114 
 
 s. 30. 
 
 354. A decree in absence, whether a charge, if competent, 
 has been given or not, becomes final, and entitled to all the 
 privileges of a decree in foro, in six months from the date 
 of decree or of the date of charge upon it, if the service of the 
 writ, or of the charge, has been personal; in any other case, 
 in twenty years from the date of decree. The privilege which 
 attaches to a decree in foro is that the defender cannot be 
 reponed. The decree then can be challenged only by 
 suspension, if competent, or by reduction. 
 
 Appendix, Rule 25. Bryson v. Belhaven Motors, 
 
 7 Ed. VII. c. 51, Sch. I., Rule Limited, 1908, 15 S.L.T. 1043 
 
 25. 
 
 355. If pursuer purposes to restrict the craving of his 
 initial writ, he should do so before putting in his minute 
 craving decree in absence. In practice a restriction and the 
 crave for decree are usually embodied in the same minute, 
 but the restiiction may be in a separate minute. The 
 restriction of the crave is not an " amendment " of the initial 
 writ in the sense of Rule 26, and, as defender is not prejudiced 
 by the claim or demand set forth in the writ being lessened, 
 no notice requires to be given to the defender, and the 
 restricted writ does not require to be re-served. If, however, 
 the restriction alter the complexion of the action, so as to have 
 a bearing upon the question of expenses, as, for instance, a 
 claim warranting an ordinary action being reduced to an 
 amount warranting only a Small Debt action, the Sheriff will 
 take that into account in awarding expenses, and probably 
 allow expenses only upon the scale appropriate to the craving 
 10
 
 m; rM)i:Ki;.\])i;i) cai si:. 
 
 as restricted. Bui il the restriction is necessitated by a pay- 
 ment having 1 o made after service of the action, the expenses 
 
 will still be allowed upon the scale appropriate to the original 
 crave. 
 
 Appendix, Rules 23-26. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 2326. 
 
 356. The expenses should bo taxed before decree in absence 
 
 is erranted, and the taxed amount included in the decree. NO 
 
 formal remit is necessary, although it is not incompetent to 
 
 make it ; for the auditor has before him the initial writ bearing 
 
 the aerent's minute craving decree as in an undefended cause, 
 
 and in an undefended cause the auditor has statutory authority 
 
 to endorse upon the writ a certificate of audit, fixing the 
 
 amount of the taxed expenses to be included in the decree in 
 
 absence. 
 
 Appendix. Rules 23, 99. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 23, 99. 
 
 357. The object of the direction of the Sheriff Courts Act, 
 1907, that a minute is to be endorsed upon the writ craving the 
 issue of a decree in absence, instead of decree being moved for 
 in Court, as was the former practice, obviously is to enable the 
 decree to be signed at any time after the action has become 
 officially an undefended cause. The statute does not direct 
 thai the minute is to be presented to the Sheriff by the agent, 
 but merely that it is to be endorsed upon the writ. It is not 
 intended that the agent necessarily appear before the Sheriff, 
 but merely that he endorse the minute upon the writ, and leave 
 it with the Sheriff-clerk, in order that he may procure the 
 decree in absence signed by the Sheriff in ordinary course. 
 There is no form prescribed for the minute craving decree, and, 
 as it is to be endorsed upon the writ, all that seems called for 
 is a brief request, such as " the pursuer craves decree in 
 " absence." 
 
 Appendix, Rule 23. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 23. 
 
 358. A decree in absence should not, as it sometimes is, 
 be confounded with a decree by default. Formerly the dis- 
 tinction between them was somewhat less marked than it now 
 is, for a decree was sometimes regarded as a decree in absence
 
 DECREE. 147 
 
 even although the defender had formally appeared, and only 
 a judgment pronounced after defender had made some sort of 
 pleading was regarded as a decree in foro. If the defender did 
 not appear at the calling of the cause, the Sheriff might decern 
 against him in absence, but in certain kinds of actions he 
 might allow a proof where proof might be necessary to make 
 a decree operative, as, for instance, in an action for delivery 
 of a box and its contents, proof might be taken as to the con- 
 tents, the pursuer being appointed to give notice to the 
 defender of the diet. The Sheriff Court Act of 1853 intro- 
 duced the modern notice of appearance, and the practice of 
 granting decree when the defender did not appear, with power 
 to repone him. The Sheriff Court Act of 1876 directed the 
 Sheriff to grant decree in absence if the inducise had expired 
 without defender having entered appearance to defend. The 
 Sheriff Courts Act, 1907, contains a similar direction. 
 
 Appendix. Rules 22-24. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 16 & 17 Vict. c. 80, s. 2, 3. 23. 
 
 39 & 40 Vict. c. 70, s. 14. 
 
 359. In present-day practice a decree in absence may be 
 granted in an " undefended cause," which does not mean an 
 action in which a defender appears and fails to make a defence, 
 but an action in which the defender fails to make appearance 
 at all. If the defender appear at all, or if notice of appearance 
 is lodged, the case cannot be an undefended cause, and a decree 
 pronounced after the defender has once appeared is not a decree 
 in absence, but a decree by default. A decree by default is a 
 decree in foro. 
 
 See pars. 605-612. 
 
 2. Extract. 
 
 360. An extract of a decree in absence may be obtained 
 after the expiry of seven days from the date of the Sheriff's 
 judgment. Formerly the judgment had to be signed within 
 the sheriffdom. The Sheriff Court Act of 1853 made it com- 
 petent to sign judgment outwith the sheriffdom. The 1876 
 Act repeated this provision, and directed that it " bear date 
 " at the seat of the Court as of the day on which it is received 
 " there by the Sheriff-clerk and entered by him in the books 
 " of Court." This was repealed, but has been re-enacted by the
 
 148 UNDEFENDED CAUSE. 
 
 Sheriff Courts Act. L907, which declares thai " the date of every 
 •• interlocutor shall be deemed to be the dale upon which it is 
 "entered in the books of Court." A decree in absence, there- 
 fore, is not extractable till after the lapse of seven clear days 
 from the entry of the decree in I he Act Book of the Court. This 
 applies to a decree in absence in either an ordinary action or a 
 summary cause. 
 
 Appendix, Rules 24, 83. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 16 & 17 Vict. c. 80, s. 47. 24, 83. 
 
 39 & 40 Vict c. 70, s. 50. Inglis v. Macintyre, 1862, 24 1). 
 
 541. 
 
 361. An extract is the warrant for making a decree or order 
 of Court operative. An interim as well as a final decree may 
 be extracted. Under the Sheriff Courts Acts, 1907-1913, the 
 Sheriff does not appear to have power to shorten the period 
 
 within which an extract may be issued, in the case of a decree 
 
 in absence. 
 
 Appendix, Rules 24, 85. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 11 24, 85. 
 
 362. Formerly an extract was a very cumbrous document, 
 narrating in detail the whole pleadings, and the whole pro- 
 ceedings of the process, and the system of extracting decrees 
 was attended with unreasonable expense. This was modified 
 to some extent in 1830, when it became sufficient to state in 
 the body of the extract the general nature of the cause. The 
 Sheriff Courts (Scotland) Extracts Act of 1892 very much 
 simplified and cheapened the procedure by introducing brief 
 forms of extract, which are declared by the statute to be as 
 valid and sufficient as the extended forms previously in use. 
 There may, however, still occur exceptional eases in which a 
 more extended form of extract is desirable, and the statute 
 contains a provision thai ''any party interested may demand 
 "from the Sheriff-clerk a full or more extended extract." 
 55 & 56 Vict. c. 17. 
 
 363. The essentials of the extract now are («) the Court, 
 (ft) the parties, (c) the date of decree, (d) the decerniture, and 
 («) a warrant for the appropriate execution. Where imprison- 
 ment may follow, the special character of the debt should also 
 be mentioned, as, for instance, for aliment, The extract is
 
 EXTRACT. 149 
 
 dated from the seat of the Court which granted the decree, and 
 is signed by the Sheriff-clerk. It was at one time considered 
 that no decree could he extracted unless it contained the word 
 " decerns," but the Act of 1892 declared the use of this word 
 to be unnecessary. It also defined " interest " to mean interest 
 at 5 per cent, per annum unless otherwise stated. 
 
 55 & 56 Vict. c. 17, s. 4, 6, and Act of Sederunt, 27th January, 
 
 Schedule. 1830. 
 
 364. The direction of the Extracts Act is that the abbrevi- 
 ated extract is to be in the scheduled form, " or as near 
 " thereto as the circumstances permit." If a particular case is 
 not scheduled, the extract is to be " modelled on the forms of 
 " the schedule, with such variations as the nature of the case 
 "or form of the action or proceeding may necessarily require." 
 The Sheriff-clerk has a latitude, and an error in form does 
 not nullify an extract. An important error in fact may 
 render the extract null, but a trivial error will not. An 
 erasure Avas at one time regarded as a fatal defect, and it is 
 still desirable to avoid it; if an alteration is necessary, it may 
 be better to re-write an extract, or at least so to alter it as to 
 make the correction obvious. " Of all the most foolish and 
 " intolerable things which abound in our practice, the worst 
 " is that of making erasures. Why will people not put what 
 " they have to say on the margin, or mention in a marginal 
 "note what they have done?" 
 
 55 & 56 Vict. c. 17, s. 11. Harma v. Neilson, 1849, 11 D. 
 
 Brown v. Blaikie, 1849, 11 D. 941. 
 
 474 (per Lord Mackenzie). 
 
 365. An extract is not essential to make every interlocutor 
 of the Sheriff operative. In most summary applications the 
 interlocutor is its own warrant for execution, and in formal 
 intermediate steps of process an extract is not in general 
 required. An extract is necessary when an interim or final 
 judgment, in whole or in part, deals with the merits of the 
 cause, and makes a decerniture against, or an order upon, one 
 or other of the parties, which, if not voluntarily implemented, 
 requires to be enforced by diligence. The Extract Act of 1892 
 does not apply to Small Debt, summary removings, commis- 
 sary, or service of heirs proceedings, nor to proceedings under
 
 150 UNDEFENDED CAUSE. 
 
 the Summary Jurisdiction Acts. These are deal! with under 
 other statutes. 
 
 55 & 56 Vict. c. 17. s. 2. 
 
 3. Rkpoxing. 
 
 366. Reponing is the placing of a defender, who has been 
 decerned against in absence, in the same position as if that 
 decree bad not been granted. A defender who, by inadvertence, 
 bad allowed decree to pass against him in absence had formerly 
 only the remedy of suspension in the Court of Session. The 
 Judicature Act of 1825 and relative Act of Sederunt first intro- 
 duced the system of reponing defenders against decrees in 
 absence. Application was made in the Sheriff Court itself, at 
 first by separate petition, and the reponing proceedings formed 
 a separate process. The Sheriff Court Act of 1853 introduced 
 the modern reponing note. The Act of 1876 allowed a defender 
 to be reponed on simple motion, if made within seven days, 
 or before implement, if the defender could give a sufficient 
 explanation of his failure to appear. The Sheriff Courts Act, 
 1907, makes no distinction between reponing before and after 
 seven days. It adopts the principle of the written note, intro- 
 duced in 1853, but makes some important alterations on the 
 practice. 
 
 Appendix, Rules 27-33. 39 & 40 Vict. c. 70, s. 14. 
 
 6 Ceo. IV. c. 120. 7 Ed. VII. c. 51, Sch. I., s. 
 
 16 & 17 Vict. c. 80, s. 2, Sch. B. 27-33. 
 
 3G7. The Sheriff-Substitute can repone a defender only 
 
 against a decree in absence. If the judgment complained of 
 
 i< a decree by default, then it is a decree in foro, and reponing 
 
 directly is incompetent. But, if it is an appealable 
 
 judgment, an appeal may be noted, and the Appellate Court 
 
 may indirectly repone the defender, if the circumstances 
 
 warrant this course, by recalling the decree and remitting the 
 
 case back. But the Appellate Court will not accept an excuse 
 
 from the defender, which he could not have competently offered 
 
 in the lower Court, as a ground for reponing, had the decree 
 
 been in absence. 
 
 Arthur v. Bell, 1866, 4 M. 841. Vickers v. Nibloe, 1877, 4 R. 729. 
 
 Anderson v. Garson, 1875, 3 R. Stevenson v. Hutcheson, 1885, 
 
 254. 12 R. 923. 
 
 M'dibbon v. Thomson, 1877, 4 
 
 R. 1085.
 
 REPONING. 151 
 
 368. At first it was a condition of reponing that defender 
 consign the taxed expenses incurred by the pursuer, and 
 decerned for, and, upon reponing the defender, the Sheriff was 
 empowered to award the defender such portion of the consigned 
 fund as he deemed reasonable. In 1853 the defender's hold on 
 the consigned expenses became stronger, for the Sheriff was 
 directed to order payment of the whole consigned fund to the 
 pursuer " unless special cause be shown to the contrary." The 
 Act of 1876 introduced the principle of the defender consigning 
 a slump sum, which was fixed at £2 if a motion to repone was 
 made within seven days, and £5 if later. The Sheriff was 
 directed to order the consigned fund to be paid to pursuer 
 " towards his expenses " (which in practice was construed to 
 mean so far as reasonably necessary for that purpose), " unless 
 " there seems to him to be any special reason to the contrary." 
 The Sheriff Courts Act, 1907, converted the payment of the 
 consigned fund to the pursuer from a privilege into a right. It 
 treats the consigned fund as a penalty, payable to pursuer, in 
 respect of defender's carelessness. It takes no account of 
 whether the decree in absence has been extracted or not (which 
 explained the two scales of consignation under the 1876 Act), 
 but fixes a uniform consignation sum of £2 in all cases, and 
 that fund is, in any event, and whether defender is reponed 
 or not, to be paid over to the pursuer. Under the Act of 1907 
 the Sheriff does not appear to have any discretion to refuse 
 payment of the £2 to the pursuer. 
 
 Appendix, Rules 27-31. 39 & 40 Vict. c. 70, s. 14. 
 
 16 & 17 Vict. c. 80, s. 2. 7 Ed. VII. c. 51, Sch. I., Rule 31. 
 
 369. The Sheriff Courts Act, 1907, made still more impor- 
 tant changes in reponing procedure. Originally nothing was 
 necessary except defender's bare request to be reponed. The 
 form of the 1853 Act offered no explanation, but read simply 
 " the defender craves to be reponed," and, upon consignation, 
 the defender, as matter of right, was entitled to be reponed. It 
 was so in practice also under the 1876 Act ; for, although, if 
 reponing were sought after seven days, the defences had to be 
 produced along with the reponing note, which also had to make 
 explanation of the defender's non-appearance, the Sheriff had 
 no discretion within seven days, and his discretion after seven 
 days was doubtful, to refuse to repone. Eeponing has now
 
 152 UNDEFENDED CAUSE. 
 
 become altogether a matter of discretion. The Sheriff Courts 
 Art, L907, expressly enacts that "if the Sheriff is not satisfied 
 " with the defender's explanations he may refuse the reponing 
 "note." But the 1913 Act has made an interlocutor refusing 
 a reponing not,- appealable. The Sheriff's interlocutor repon- 
 ing a defender is final. 
 
 Appendix, s. 27. 28, Rules 30,33. 2 & 3 Ceo. V. c. 28, s. 2, Sch. I. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 30. 
 
 370. The Sheriff Courts Act, 1907, gives no set form for a 
 reponing note, but defender is required to set forth in it " his 
 " proposed defence and his explanation of his failure to 
 " appear." The defence here meant is the general answer to 
 pursuer's case, as set forth in the initial writ. It is obviously 
 most important that the Sheriff should know before, not after, 
 reponing a defender whether he has any real defence to state, 
 and, if the defence indicated in the reponing note is obviously 
 of a dilatory or frivolous nature, the Sheriff may refuse it. 
 What is contemplated is that the matter of reponing shall 
 be decided upon the note itself, without inquiry by proof. The 
 fact, however, that the defender is required to serve the 
 reponing note upon pursuer seems to infer that pursuer is 
 entitled to be heard, if he wants to be heard; but it does 
 not infer that pursuer must necessarily attend a formal diet 
 to consider the reponing note (as was necessary under the 1876 
 Act), although in practice a diet is usually appointed. 
 
 Appendix, Rule 27-33. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 16 & 17 Vict. c. 80, Sch. B. 27-33. 
 
 39 & 40 Vict. c. 70, s. 14. Smith v. Inglis, 1881, 18 S.L.R. 
 
 563. 
 
 371. What will be regarded as a sufficient explanation, 
 \\ hich entitles a defender to be reponed, is a question of cir- 
 cumstances. In general, the Court will be reluctant to allow 
 a defender, who has ex facie a defence, to be baulked of stating 
 it, because of his agent's omission to attend a diet of compear- 
 ance in a summary cause, or in an ordinary action timeously 
 to lodge a notice of appearance, and reponing will probably not 
 be refused, unless the agent's negligence is gross; but if the 
 fault is attributable to the party himself it will be more 
 strictly regarded. The negligence of an agent may, of course, 
 be imputed to the client, and form a good ground for refusal
 
 REPONING. 153 
 
 to repone a defender, especially where the defence indicated is 
 not substantial. 
 
 Morrison v. Smith, 1876, 4 R. 9. Bain v. Lawson, 1899, 1 F. 576. 
 
 King v. Gavan, 1880, 17 S.L.R. Motherwell Commissioners v. 
 
 583. Lanark Commissioners, 1901, 
 
 Stevenson v. Hutchison, 1885, 12 4 F. 151. 
 
 R. 923. Thow v. Thow, 1908, 24 S.C.R. 
 
 M'Carthy v. Emery, 1897, 24 R. 329. 
 
 610. Logan v. Miller, 1911, 27 S.C.R. 
 
 Brown's Trustees v. Milne, 1897, 25. 
 
 24 R. 1139. 
 
 372. The effect of a reponing note is that it operates as 
 a sist of diligence, but it does not recall it. Thus an arrest- 
 ment on the dependence stands, notwithstanding that defender 
 may be reponed. The defender may fail in his defence, and 
 the pursuer is not to be deprived of the benefit of any diligence 
 he may meantime have used. An interlocutor of the Sheriff- 
 Substitute allowing a reponing note is final, but an interlocutor 
 refusing to repone is appealable. If the defender is reponed, 
 the decree in absence is recalled, and the process is resumed 
 at the point where the decree in absence intervened ; that is to 
 say, in a summary cause a diet will be fixed for the trial of 
 the cause, and in an ordinary action a time will be appointed 
 for receiving defences. The case thereafter will proceed as 
 if the decree in absence had never been granted. 
 
 Appendix, s. 27, 28, Rules 27-33. Smith v. Inglis, 1881, 18 S.L.R 
 7 Ed. VII. c. 51, Sch. I., Rule 563. 
 
 29. Nicol v. Johnston, 1888, 26 
 2 & 3 Geo. V. c. 28, Sch. II. S.L.R. 61. 
 
 373. Matters, however, may not be intact, and it may not 
 be possible to place the defender just where he was before 
 the decree in absence was pronounced, for the decree may have 
 been partially implemented. The Sheriff can only " recall the 
 " decree so far as not implemented." If it has been fully 
 implemented, of course the defender cannot be reponed at all. 
 Formerly doubt existed as to whether reponing was competent, 
 if the decree had been implemented to any extent, but the 
 Sheriff Court Act of 1853 expressly made it competent to 
 repone against the non-implemented part of a decree, and the 
 Act of 1907 also makes recall of the decree competent so far as 
 not implemented. 
 
 Appendix, Rule 29. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 16 & 17 Vict. c. 80, s. 2. 29.
 
 154 UNDEFENDED CAUSE. 
 
 374. What is "implement" of a decree in absence is a 
 question of circumstances, more especially in actions with 
 mixed or alternative conclusions, and in cases where diligence 
 has been partially operated, before reponing is sought. In tin- 
 ordinary case there is no difficulty, as, for instance, in a simple 
 money claim for a specific debt. If by voluntary payment by 
 the defender, or by the use of diligence by pursuer, half the 
 sum decerned for in absence is already in pursuer's pocket, the 
 reponing has no effect upon thai halt, and the defence can be 
 entertained only to the effect of showing why the other half 
 should not be paid. So also, in a simple claim for delivery. 
 If under a decree ordaining delivery of fifty articles, the 
 pursuer has already obtained possession of thirty, the 
 defender can be reponed only against the order to deliver the 
 other twenty. No hard and fast definition of "implement" 
 is possible. 
 
 375. The general principle is that, to whatever extent 
 the pursuer has actually obtained what he sought, the defender 
 is barred from being reponed, but if pursuer, however 
 near he may have come to it, has not actually got what the 
 decree entitled him to have, the defender is still in time to 
 seek to be reponed, as, for instance, where an arrestment has 
 attached funds, but the arrestment has not yet been made 
 operative by decree of furthcoming. But where a poinding 
 has been followed by a sale, the goods sold converted into cash, 
 and the cash is in the hands of the officer or auctioneer, holding 
 on pursuer's behalf, although it has not yet reached the pursuer 
 personally, that decree has been to that extent implemented in 
 the reponing sense. 
 
 Appendix, Rule 29. Anderson v. Anderson. 1855, 17 
 
 Stephenson v. Dobbins, 1852. 14 D. 804. 
 
 D. 510. Paul v. Macrae, 1886. 3 S.C.R. 
 
 338.
 
 CHAPTER VIII. 
 DEFENDED CAUSE. 
 
 1. Appearance. 
 
 376. An action is " defended " when appearance is made by 
 
 or for the defender. Formerly a defender might withdraw 
 
 his notice of appearance before or at the first calling, but that 
 
 is not now competent, for the Sheriff Courts Act, 1907, directs 
 
 the Sheriff-clerk, so soon as the notice of appearance has been 
 
 lodged, to enrol the case as a defended cause. In an ordinary 
 
 action, appearance is made by defender lodging a notice of 
 
 appearance before the expiry of the inducise. In a summary 
 
 cause, appearance is made by defender or his agent answering 
 
 when the case is called at the diet appointed in the warrant of 
 
 citation. But the effect is in each case the same. A decree 
 
 in absence cannot then be granted, even if defender do nothing 
 
 more than appear, for, whether he go on to defend the action 
 
 or not, the mere fact of his making appearance makes the 
 
 action a defended cause ; and, if defender do not go on to 
 
 defend, judgment is given against him in the form of a decree 
 
 by default, not a decree in absence. 
 
 Appendix, Rules 4, 22. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 4, 22. 
 
 377. The practice in this matter in the Sheriff Court differs 
 
 from that of the Court of Session, where a decree in respect 
 
 of no defences is regarded as a decree in absence. The practice 
 
 in the Sheriff Court is now regulated by the express terms of 
 
 the Sheriff Courts Act, 1907, but that only expresses what 
 
 had always been the common practice in the Sheriff Court. 
 
 Appendix, Rule 23. Marjoribanks v. Borthwick, 
 
 31 & 32 Vict. c. 100, s. 22. 1852, 19 D. 474. 
 
 2. Tabling. 
 
 378. Under the Sheriff Courts Act, 1907, "tabling" is 
 an official step in every process, and is a new process name. 
 Formerly, at the first calling of an action, an agent might or
 
 156 DEFENDED CAUSE. 
 
 might not table it. There was no provision requiring him to 
 do 30, and, it defender did not at the first calling move for 
 protestation, there was no fixed rule as to procedure. In some 
 Court- the practice was to drop the action from the calling 
 list at once. In others it was the practice to call it on several 
 successive Court days before dropping it. The 1907 Act is 
 peremptory on the subject. It directs that, "where appear- 
 " ance has been entered, the Sheriff-clerk shall enrol the case 
 " for tabling on the first Court day occurring after the expiry 
 •• f the Lnduciae." If the case is not then tabled, it drops from 
 the roll; but by leave it may be tabled within three months. 
 If arrest ment on the dependence has been used prior to service, 
 it falls, unless the action is tabled within twenty days of the 
 first ordinary Court day occurring after the expiry of the 
 induciae. It is the pursuer's duty to table the case, and it 
 is the defender's privilege, if the case is not tabled, to ask 
 protestation. But where there are several defenders the case 
 will not be enrolled for tabling till the induciae has expired 
 against the defender last served. 
 
 Appendix. Rules 34-36, 127. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7 Ed. VII. c. 51, Sch. I., Rules 
 34-36. 
 
 379. A summary cause must likewise be tabled, and that 
 upon the day appointed in the warrant of citation. If the 
 action is to proceed, both parties must attend the diet, for both 
 have duties, the pursuer to table the case, the defender to 
 state his defence, if any. There is no express direction as 
 to the procedure in the event of a summary cause not being 
 tabled, and no express direction was needed, for the summary 
 cause is an ordinary Court process, just as much as an ordinary 
 action is, and the Sheriff has a perfectly free hand to apply, 
 in the summary cause process, all or any of the procedure 
 rules which he may think appropriate. If, therefore, at the 
 appointed diet, the pursuer do not attend and table his case, 
 the Sheriff may grant protestation to the defender, and if 
 defender is the absentee, he may grant decree against him. 
 
 Appendix, Rules 34, 36, 41. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 3. Process. 
 
 380. So soon as an action is seen to be contested — that is, 
 as regards an ordinary action, when a notice of appearance
 
 PROCESS. L57 
 
 has been lodged, and, as regards a summary cause, when it 
 has been called and defender has answered, it becomes the duly 
 of the pursuer to make up a process, and to lodge with the 
 Sheriff-clerk, inter alia, interlocutor sheets, process inventory, 
 and certified copy of the initial writ. The process begins 
 its course when the action is tabled, and thereafter may be bor- 
 rowed. The principal initial writ, principal interlocutor 
 sheets, and borrowing inventory of process remain always with 
 the Sheriff-clerk, unless the Sheriff grants a special warrant to 
 give out the initial writ. The items of a process are numbered 
 in their order as put in, but the pleadings must also have 
 endorsed upon them the date at which they are lodged. 
 
 Appendix, Rules 16, 18, 46. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 16, 18, 46. 
 
 381. Two persons only are entitled to give a receipt for a 
 borrowed process. The one is "an agent entitled to practise 
 " in the jurisdiction " ; the other is " his duly authorised clerk, 
 "for whom he shall be responsible." At first sight, it might 
 appear that any law agent who has paid his 5s. fee, and been 
 enrolled in the local Court books, might borrow a process there, 
 for his mere enrolment makes him an agent " entitled to 
 "practise in the jurisdiction." But Procedure Rule 16 of the 
 Sheriff Courts Act, 1907, must be read along with section 15 
 of the Law Agents (Scotland) Act, 1873, which debars an 
 agent from borrowing a process " unless he have a place of 
 " business within the jurisdiction of such Court." This has 
 not been directly repealed by the Sheriff Courts Act, 1907, 
 and the two statutory provisions are not inconsistent. Read 
 together, their meaning seems to be that only an agent enrolled 
 to practise in, and having a place of business within, the 
 jurisdiction of the Court before which a process is proceeding, 
 may borrow that process, although that is now rendered 
 doubtful by the amendment made upon Rule 16 by the 1913 
 Act making a borrower responsible for a process, whether the 
 borrower is or is not resident within the Court's jurisdiction. 
 
 Appendix, Rule 16. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 36 & 37 Vict. c. 63, s. 15. 16. 
 
 2 & 3 Geo. V. c. 28, Sch. II. 
 
 382. The agent who borrows a process is the agent respon- 
 sible for it, although he may not be the agent conducting the
 
 158 Di:i IIXDED CAUSE. 
 
 Litigation Eoi either party. Jt is the agent's duly to return 
 the process " for any diel at which it is required," that is to 
 say, each time it is enrolled, either by direction of the statute 
 or by order ol the Court. It an agent who has borrowed a 
 process fail so to return it, he may be fined in a sum not 
 exceeding £1. This is a penalty personal to the law agent, 
 for which his client has no liability. It is optional to, not 
 imperative upon, the Sheriff to impose it. If he does so, 
 there is no appeal, but the Sheriff himself may, on cause 
 shown, cancel it. 
 
 Appendix, Rule 57. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 57. 
 
 388. Formerly, when an agent failed to return a process, 
 the only remedy was for the other agent to institute against 
 him a process caption, in which, after intimation, a warrant 
 of imprisonment might be granted against the agent who had 
 borrowed and failed to return the process (and his clerk if a 
 clerk had signed the receipt). A caption process of this sort 
 is still competent, and is the appropriate remedy where, as 
 sometimes happens, after a case is finished, a process is held 
 up to prevent extract being issued. This would probably be 
 regarded as a form of contempt of Court. If a process is held 
 up in the course of the litigation, there is a simple remedy 
 under the Sheriff Courts Act, 1907. An agent borrows a 
 process on behalf of his client; non-implement of an order of 
 Court to have it returned to the Sheriff-clerk would be default 
 under Procedure Rule 56, entitling the Sheriff to give judgment 
 against the party whose agent is holding up the process, and 
 so end the litigation. 
 
 Appendix, Rules 56, 57. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 56, 57. 
 
 4. Protestation. 
 
 384. Protestation is the defender's only remedy against a 
 iiuiMier who does not proceed with a process which he has 
 instituted. By this means the defender can force the pursuer 
 cither to proceed with his process or let his action fall. But 
 the defender must not miss his opportunity, for there is only 
 one stage at which he may exercise his privilege. That is, in 
 a summary cause at the appointed first diet of compearance ; 
 and in an ordinary action at the diet at wdiich the pursuer
 
 PROTESTATION. 159 
 
 should table his case, which is (a) the first Court day occurring 
 after the expiry of the induciae; or (b) any Court day, not 
 later than three months after the first, upon which the Sheriff 
 may direct the case to he enrolled for tabling. With this 
 restriction (consequent upon the new provision that a case is 
 only once called, and if not tabled then is dropped from the 
 roll) the provisions of the Sheriff Courts Act, 1907, as to 
 protestation practically repeat those of the Act of Sederunt 
 of 1839, which they supplant, and the procedure is the same 
 as formerly. The defender produces the service copy of the 
 writ and craves protestation. The Sheriff is directed to 
 " modify the amount of protestation money," which is an 
 allowance to the defender to cover the expense to which he 
 has been put, for which the Sheriff grants decree against the 
 pursuer. Where there are two or more defenders, protestation 
 taken by one is available to all. Extract is granted after a 
 lapse of seven days in normal circumstances, or forty-eight 
 hours where arrestments have been used, and upon protestation 
 being extracted the instance falls, any arrestment on the 
 dependence, of course, falling also. 
 
 Appendix, Rules 34-39. Scales v. Commercial Bank, 
 
 7 Ed. VII. c. 51, Sch. I., Rules 1839, 1 D. 465. 
 
 34, 39. Higgins v. Atkinson, 1908, 24 
 
 S.C.R. 385. 
 
 385. There is no appeal against an interlocutor granting 
 protestation, but, before extract, the Sheriff himself may recall 
 the protestation, upon payment to defender of the protestation 
 money, and, upon such other conditions as he think fit, he may 
 allow pursuer to table his action. If, however, the protestation 
 is extracted, the process comes to an end, and pursuer would 
 then require, if he wants to revive it, to serve a fresh initial 
 writ, and table a new action. 
 
 Appendix, Rule 39. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 39. 
 
 386. Upon a very strict reading of Procedure Rule 5G, it 
 has been suggested that a defender who has entered appearance 
 in an ordinary action, or w T ho has answered to a pursuer's 
 citation in a summary cause, and finds no pursuer at the 
 tabling diet, is entitled to decree of absolvitor. But if the 
 pursuer do not appear, there is no process before the Court in 
 which an interlocutor could be written granting decree of
 
 1G0 i >i:f KXDED CAUSE. 
 
 absolvitor. Besides, it decree of absolvitor were granted, the 
 pursuer would be foreclosed from suing a new action, a result 
 which is not intended to follow from a pursuer failing- to 
 attend the first diet, and protestation being granted, the only- 
 effect of that being that the instance falls in the particular 
 action in which the pursuer has failed to appear. In a 
 summary cause, therefore, as well as in an ordinary action, 
 \\ liei i' a pursuer does not appear at the first diet, the defender's 
 course is not to move for absolvitor under Rule 5G, but to crave 
 protestation under Rule 36. The tabling diet is not really a 
 " diet " in the sense of Rule 5G, because it is created by Rule 
 3 I : and the general rule of construction is that where, in a 
 set of procedure rules, there is a general rule, the terms of 
 which might cover a certain event, but there is also a special 
 rule applicable to that particular event, the general rule gives 
 way to the special. 
 
 Appendix, Rules 34, 56. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 34; 56. 
 
 5. Lost Peocess. 
 
 387. Formerly much inconvenience resulted from a part 
 or the whole of the process going amissing. To set up the 
 terms of documents which had been produced in Court, but 
 had been lost, sometimes an action of proving the tenor was 
 necessary. The Sheriff Court Act, 1876, to a large extent 
 remedied this by making it competent, by leave of the Court, 
 to substitute a copy for a lost document. But the phraseology 
 of the 1876 Act was somewhat restricted, and was in practice 
 held to apply only to lost pleadings. The Sheriff Courts Act, 
 1D07, has a very broad enactment covering every document in 
 a process, including the initial writ and interlocutor sheets. 
 To bring a document within its provision, it i> sufficient that it 
 has been marked a number of process. The power to substitute 
 a copy is often convenient in the case of productions. A letter 
 or telegram in a voluminous correspondence produced in a 
 proof may very readily go amissing, and that particular docu- 
 ment may be of vital interest to a party. The broad rule now 
 is that when arvy number of process is lost or destroyed a 
 copy thereof, "authenticated in such manner as the Sheriff 
 "may require, may be substituted, and shall, for the purposes 
 " of the action, be equivalent to the original." 
 
 Appendix, Rule 17. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 39 & 40 Vict. c. 70, s. 11. 17.
 
 LOST PROCESS. 161 
 
 388. What is a copy, and what is " authentication," are 
 
 questions of circumstances in each case. Excerpts from books, 
 
 correspondence, and the like there should be no difficulty 
 
 about ; but there may be documents upon the appearance of 
 
 which much may depend — as, for instance, bills of exchange 
 
 or bills of lading — and it may often be impossible to get an 
 
 exact duplicate. So also with engrossed deeds, of which there 
 
 may be no duplicate. In the case of a lost lease, for instance, 
 
 a tenant's copy, made at the time the lease was entered into, 
 
 and then delivered to the tenant, and certified by the landlord's 
 
 law agent or factor as a correct copy, would probably be 
 
 accepted by the Court as a sufficiently authenticated copy. 
 
 But if the copy had to be made up from a draft, it might come 
 
 very near to setting up the lost deed, instead of substituting a 
 
 copy of it. No hard and fast interpretation can be put upon 
 
 this rule. But it certainly does not sanction a document being 
 
 set up, as distinguished from a copy of a document being 
 
 substituted for a lost original, and cases may still occur where 
 
 a document of importance may have to be set up in a separate 
 
 action of proving the tenor. 
 
 Appendix, Rule 17. 7 Ed. VII. c. 51, Sch I., Rule 
 
 17. 
 
 389. It is to be observed that it is only competent to sub- 
 stitute a copy of a document which has been produced, and 
 marked a number of process. It is not enough that a document 
 is founded on in the pleadings, for the document founded on 
 does not thereby come into the process. Thus, if a document 
 is produced along with the initial writ, or with defences, and 
 that document gets lost, a copy may be substituted ; but if the 
 document of debt has not been produced with the pleading, 
 but is merely lef erred to in it, the document has never become 
 a number of process, and so, if it goes amissing, the Sheriff 
 has no power to substitute a copy, although he might perhaps 
 do so of consent of all parties. 
 
 Appendix, Rule 17. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 17. 
 
 6. Procedure after Tabling. 
 (1) General. 
 
 390. Until 1853, actions in the Sheriff Court were almost 
 entirely conducted by written pleadings, except in the Small 
 
 11
 
 162 DEFENDED CAUSE. 
 
 l)rl>t Court, where oral pleading has always Loon recognised. 
 The summons which initiated the ordinary action was a cum- 
 brous document, and not less so were the condescendence, 
 
 defences, replies, triplies, or even quadruplies, which mighl 
 follow before the case goi the length of a closed record, not 
 to speak of the endless collateral written pleadings, which 
 were competent in the course of ilie proceedings after that, or 
 of the reclaiming petitions and answers under which in like 
 manner appeals were disposed of. An absolute contempt for 
 time and cost was the distinguishing feature of the earlier 
 Sheriff ( 'unit met hods. 
 
 391. All lliis was revolutionised when the Sheriff Court Act 
 
 of 18~>."> in! reduced oral pleading. By the earlier Act of 1838, 
 
 and the relative Act of Sederunt of 10th July, 1839 (which 
 
 until 1907 was the Sheritf Court procedure code), much 
 
 httitude had been allowed in regard to the extent to which 
 
 the written pleadings need be carried. The parties, for 
 
 instance, were given the option of dispensing with replies, 
 
 and with any pleadings beyond the summons and defences, 
 
 and it was made competent, although not imperative, to close 
 
 the record upon these alone. The Sheritf was also invested 
 
 with full powers to circuinduce the time for lodging pleadings, 
 
 and in various other ways to accelerate procedure. To some 
 
 extent the practice of supplementing, if not supplanting, the 
 
 written pleadings by oral explanation at the bar, had begun to 
 
 prevail, and in i}\\< matter, as in so many others, the Act of 1853 
 
 probably gave legislative sanction to what had come to be 
 
 existing practice, when it based the new system of procedure 
 
 whi(d) it introduced upon the right of parties at all stages of 
 
 the cause to be orally heard, rather than to put their views 
 
 before the Court in writing:. 
 
 Act of Sederunt, 1839, s. 32, 16 & 17 Vict. c. 80, s. 3, 12 
 
 35, 54, 66, &c. 
 
 392. The only relic of written pleading which was saved 
 by the Act of 1853, and which still survives, is the optional 
 power to the Sheriff of ordering writing rather than speech in 
 appeal proceedings. Both, indeed, may be dispensed with 
 of consent, for. although the Sheriff Courts Act, 1907, directs 
 that in ;in appeal against final judgment, the Sheritf may order 
 a reclaiming petition and answers, it also provides that of 
 consent he may dispose of the appeal without even an oral
 
 PROCEDURE AFTER TABLING. 163 
 
 hearing. The Sheriff has a like latitude as regards appeals 
 
 upon the competency of evidence taken in the course of a proof. 
 
 He is broadly directed, *' with or without a hearing, and with 
 
 "the least possible delay, to dispose of such appeal." 
 
 Appendix, Rules 76, 89, 90. 7 Ed. VII. c. 51. Sch. I., Rules 
 
 16 & 17 Vict. c. 80, s. 16. 76, 89, 90. 
 
 (2) Summary Cause. 
 
 393. As has already been pointed out, there are no statu- 
 tory requirements as to procedure in a summary cause, except 
 in defended causes, that (a) there must be a note taken of the 
 defence, (b) a diet must be fixed for the trial of the cause, (c) the 
 judgment must be in writing and contain findings in fact and 
 findings in law. Whilst formal pleadings, however, are not 
 compulsory, they are quite competent, and it is in the Sheriff's 
 discretion to adopt as procedure in a summary cause such of 
 the rules as he considers appropriate. Thus, there is no 
 statutory obligation to make up a record, and in the great 
 majority of summary causes a formal record is quite unneces- 
 sary. If, however, it is in any case considered expedient to 
 order formal pleadings, then it will be competent and convenient 
 also to close the record. 
 
 Appendix, s. 8, Rule 41. 7 Ed. VII. c. 51, s. 8, Sch. I., 
 
 Rule 41. 
 
 394. Of consent of parties, any action may at any stage 
 
 become a summary cause. The provision of the Sheriff Courts 
 
 Act, 1907, was that an ordinary action might of consent be 
 
 " treated as a summary cause." The expression of the 1913 
 
 Act is that it may be " tried summarily." But the meaning 
 
 is the same. If an action not falling within the summary 
 
 cause definition is of consent desired to be tried as such, the 
 
 parties should put in a joint minute craving the Court to direct 
 
 that it be tried summarily. Such a minute may be put in at 
 
 any stage of a cause, but the obviously convenient stage is at 
 
 the tabling. 
 
 Appendix, s. 3 (i), 8, Rules 40, 7 Ed. VII. c. 51, s. 3 (i) (2), 
 
 41. Sch. I., Rule 40. 
 
 2 & 3 Geo. V. c. 28, Sch. II. 
 
 (3) Ordinary Action. 
 (a) The Condescendence. 
 
 395. The condescendence, as a statutory necessity, was 
 introduced by the Sheriff Court Act of 1876. Under the Act of
 
 164 DEFENDED CAUSE. 
 
 1853, a condescendence might be ordered, but was not an 
 initial requirement. Prior to IS") ."5 the case was stated in detail 
 in the summons, any supplementary information necessary 
 being supplied, together with arguments, in the course of the 
 written pleadings. When an action is not to be defended, 
 obviously there is no need for a detailed condescendence, and 
 the Sheriff Courts Act, 1907, had dispensed with it as part 
 of the initial writ; but the amending Act of 1913 has gone 
 hark to the 1876 practice of appending a condescendence to the 
 Initial writ. 
 
 Appendix, Rule 1, Form A. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 16 & 17 Vict. c. 80, s. 3. 1. 
 
 39 & 40 Vict. c. 70, s. 6, Sch. A. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 396. The object of a condescendence is to set forth in detail 
 the grounds of action, and it should disclose the whole case 
 of pursuer, including his title and interest to sue. The con- 
 descendence is a pursuer's explanatory paper, setting forth 
 succinctly and in articulate articles the grounds of action and 
 his pleas in law. The pursuer should set forth all his pleas 
 in law, for the Court will not give judgment upon a plea which 
 has not been stated. 
 
 Appendix, Rule 2. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7 Ed. VII. c. 51, Sch. I., Rules 
 42, 79. 
 
 (b) The Defences. 
 
 397. In the defences the primary object is to answer the 
 articles of the condescendence, but it may be not less important 
 for the defender to put his complexion upon the facts and 
 circumstances out of which the action has arisen. The statutory 
 direction is that defences shall be in the form of articulate 
 answers to the condescendence, with a note of defender's pleas 
 in law, and, where necessary, a statement of facts. This 
 separate statement of facts is essential when the defender states 
 a counter claim. 
 
 Appendix, Rule 43. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 46. 
 
 398. Defences do not require to be ordered by the Court 
 unless, in a summary cause, the Court thinks they are neces- 
 sary. In an ordinary action, if appearance has been entered,
 
 THE DEFENCES. 165 
 
 it becomes the defender's duty at the tabling diet, or within 
 six days thereafter, to lodge defences. 
 
 Appendix, Rules 42, 43. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7 Ed. VII. c. 51, Sch. L. Rule 
 42. 
 
 399. A party is bound to answer statements made by the 
 other party in regard to facts which are within his knowledge, 
 even if he intends to plead that the statements are irrelevant. 
 If a party makes evasive answers, he runs a risk of being held 
 as admitting his opponent's statements, because he does not 
 distinctly deny them. Qualified admissions must be taken 
 with their qualifications. A party cannot be too careful, 
 however, in making qualified admissions, because, if the other 
 party at a proof succeeds in removing the qualification, he 
 might then found upon the admissions. 
 
 Appendix, Rule 44. Gelston v. Christie, 1875, 2 R. 
 2 & 3 Geo. V. c. 28, Sch. II. 982. 
 
 North-Eastern Railway Company Chrystal v. Chrystal, 1900, 2 F 
 v. Napier, 1859, 21 D. 700. 373. 
 
 400. It frequently happens that the facts in a case, stated 
 from defender's point of view, put a new complexion upon 
 pursuer's case. It is important, therefore, that, where neces- 
 sary, the pursuer should be required to face the facts as 
 presented from the defender's point of view. Formerly a 
 pursuer was not bound to answer a defender's statement of 
 facts, but under the Sheriff Courts Acts, 1907-1913, he must 
 do so. 
 
 Appendix, Rule 44. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 49. 
 
 401. Where there are more defenders than one, each is 
 entitled, but not bound, to lodge defences. Where the ground 
 of defence is the same, however, a question may arise as to 
 whether, if the defence is successful, each defender is entitled 
 to expenses. If the grounds of defence are different, of course, 
 each defender may support his own pleas. It frequently 
 happens that a question of liability is really one amongst the 
 defenders themselves, rather than one with the pursuer, who 
 is entitled to decree against one or more, the object of the 
 litigation being to ascertain which defender is liable. Joint 
 defenders should either lodge a joint defence or separate
 
 166 DEFENDED CAUSE. 
 
 defences. It is not proper pleading, and it is inconvenient, 
 for one defender merely to refer to and adopt the defence stated 
 by a co-defender. 
 
 Cowie r. Merry, 1828, 7 S. 23. Richardson v. Gavin's Trustees, 
 
 1851, 14 D. 279. 
 
 402. The defence may be a challenge of a deed or writing 
 founded on, objections to which "may be stated and main- 
 " tained by way of exception, without the necessity of bringing 
 " a reduction thereof." But this convenient rule applies to 
 documents founded on as adminicles of evidence, and does not, 
 of course, make it competent to reduce a deed which could 
 not be reel need by direct action in the Sheriff Court, as, for 
 instance, a will, reduction of which is a process competent 
 only in the Court of Session. Nor does this rule, in all circum- 
 stances, entitle a defender to challenge "a deed or writing." 
 liis right to do so depends upon such elements as the nature 
 of the deed or writing, and whether the challenger has a title 
 and interest to challenge it. A deed or writing, for instance, 
 might be challenged, as not constituting an obligation enforce- 
 able at law against the defender, although in itself a valid 
 deed. Where the validity of the deed itself is challenged, then 
 the challenger must himself have a competing right or title, 
 which would entitle him to sue an action of reduction. Thus 
 a tenant, who has himself no title to the property, cannot 
 challenge the validity of his landlord's heritable title, ope 
 exceptionis, because he could not bring an action of reduction 
 of the title. 
 
 Appendix, Rule 50. Duke of Argyll v. Muir (1909), 
 
 7 Ed. VII. c. 51, Sch. I., Rule 1910, S.C. 96. 
 
 50. Donald v. Donald (1912), 1913, 
 
 S.C. 274. 
 
 (c) Jtulicial Tender. 
 
 403. If defender propose to make a tender to the pursuer, 
 the appropriate place to do so is in the defences, although it 
 is open to defender at any stage of the case to put in a minute 
 of tender. Whether it is in the defences, or by separate 
 minute, a judicial tender must meet the crave of pursuer. In 
 an action of count and reckoning, for instance, the pursuer's 
 right to demand an accounting should be recognised, and in 
 an action of damages for slander the words complained of
 
 JUDICIAL TENDER. 1G7 
 
 should be retracted, as well as money damages offered. The 
 tender must be unequivocal and unconditional, and must 
 include an offer to pay pursuer's expenses up to the date of 
 tender, and that expenses are expressly tendered should be 
 made clear, even where the amount offered is so substantial as 
 to reasonably infer that it covers expenses. A tender has 
 an important effect upon the question of expenses. If the 
 pursuer ultimately obtain less than has been offered him, not 
 only will defender not be found liable in expenses, but he may 
 be entitled to expenses against pursuer. A tender should 
 therefore be carefully expressed, having in view its probable 
 bearing upon the question of expenses at the end of the 
 litigation. One of several defenders may make a tender on 
 his own account, and the pursuer may accept it, without dis- 
 continuing the action against the others. 
 
 Faulks v. Park, 1854, 17 D. 247. Aitchison v. Steven, 1864, 3 M. 
 
 Inglis v. Macintyre, 1862, 24 D. 81. 
 
 541. Gunn v. Hunter, 1886, 13 R. 
 
 573. 
 
 (d) Counter Claim. 
 
 404. The defence may be a counter claim. Formerly a 
 counter claim could only be pleaded to the effect of set off. 
 To make it operative in itself, it required to be stated in a sub- 
 stantive action. The Sheriff Courts Acts, 1907-1913, did away 
 with the necessity for a counter action by enacting that, 
 where the defence is a counter claim, the Sheriff may deal with 
 it, stated (in a separate statement of facts) in the defences, 
 as if it were stated in a substantive action, " and may grant 
 " decree for it in whole or in part, or for the difference between 
 " it and the claim sued on." This obviously primarily applies 
 to money claims. The principle seems to be that, when there 
 are cross claims for payment, the Sheriff may decern in favour 
 of either party in the one process. The stating of a counter 
 claim by way of defence is, however, optional to the defender, 
 and, if the counter claim is in any way complex, it may be 
 desirable to bring a substantative counter action. Of course, 
 only a relevant set off claim may be thus pleaded in defence, 
 and defender should state a plea in law that he is entitled to 
 decree for his counter claim, or to set it off against pursuer's 
 claim. 
 
 Appendix, Rules 43, 55. Christie v. Birrell, 1910, S C 
 
 7 Ed. VII. c. 51, Sch. I., Rules 986. 
 
 46, 55.
 
 168 DEFENDED CATSE 
 
 405. It lias been settled that a money counter claim cannot 
 l)e pleaded in defence in an act ion of declarator, and from this 
 it has been inferred that the statute of 1907 intended to restrict 
 the operation of lhile 55 to money claims. It is possible, 
 however, that a counter claim may be a relevant defence in an 
 action other than for payment of money. Of course, there 
 cannot be a counter claim unless there is first a claim; but 
 a " claim," in the sense of 1'ule 55, does not appear to be neces- 
 sarily a claim for payment of money. The form of the intial 
 writ covers any kind of claim or demand competent in the 
 Sheriff Court, 
 
 Appendix, Rules 43, 55. 2 & 3 Geo. V. c. 28, Form A. 
 
 7 Ed. VII. c. 51, Sch. I., Rules Macnab v. Nelsons, 1909, S.C. 
 
 1, 55. 1102. 
 
 406. A counter claim or demand must, of course, be one 
 which is recognised in law as a relevant answer to the pursuer's 
 claim or demand, or a relevant condition to that demand, to 
 be purified before pursuer can obtain decree. Thus when a 
 defender has an answer of the same sort as the claim made 
 against him, or has an answer by way of set off, or lien, or the 
 like, it appears to be competent for him to work out his legal 
 remedy by counter claiming in his defences, even although the 
 claim made in the action, and the counter claim made in the 
 defences, are not both money claims. An ad factum 
 prcestandum claim or demand for delivery, for instance, is 
 often met by a counter claim for charges in respect of which 
 the defender has a lien or right of retention, such as rent, 
 freight, storage dues, or the like. So also a claim for delivery 
 of an article alleged to be the pursuer's property, but which 
 is in defender's custody, is not infrequently met by a counter 
 claim for delivery of another article alleged to be defender's 
 property which is in pursuer's custody. But where the claim 
 or demand, and counter claim or demand, are neither of the 
 same nature, nor is the one a competent set off to the other, a 
 defence by Avay of counter claim is not competent, as, for 
 instance, in an action demanding the custody of a child, it is 
 not competent to counter claim for an account for board, 
 because there is no lien on the person of the child for board. 
 The remedy is to bring a cross action, not a counter claim. 
 So also it is not competent, by way of counter claim, to set
 
 COUNTER CLAIM. 169 
 
 up an illiquid claim of damages, in answer to a claim for 
 rent. 
 
 Rolland v. Rolland, 1907, 44 Bernstine v. Holloway, 1909, 
 
 S.L.R. 770. 26 S.C.R. 32. 
 
 Macnab v. Neilsons, 1909, S.C. Christie v. Birrell, 1910, S.C. 
 
 1102. 986. 
 
 407. Even wlien a counter claim is relevant, it is not com- 
 pulsory to so state it, for stating a counter claim by way of 
 defence is only a privilege accorded to a defender. He is not 
 bound so to state bis counter claim, and he is always entitled 
 to state it in a substantative action. Accordingly, a defender 
 who avails himself of this statutory privilege, must take the 
 privilege with any disadvantages which attach to it. Thus a 
 defender, who elects to state a counter claim in his defences, 
 takes the risk of the pursuer abandoning the action. In that 
 event, the most that the defender can get is absolvitor from the 
 pursuer's claim, and, if pursuer elects to pay defender'3 
 expenses, he will not get even that, for the action is then 
 simply dismissed. It is always a pursuer's absolute right to 
 abandon his action. The defender cannot insist upon the 
 process going on, to enable him to get a judgment upon his 
 counter claim. It is the pursuer's process, and, under the 
 statutory conditions, he may at any time abandon it. Neither 
 the defender nor the Court can prevent the pursuer doing so, 
 and when the action is dismissed the counter claim falls with it. 
 
 Appendix, Rules 43, 55, 81. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 55, 81. 
 
 408. A defender, who states a counter claim, has no privi- 
 lege corresponding to the pursuer's right to abandon a process. 
 Abandonment is a privilege available only to a pursuer in an 
 action. It is not enough that a party is pursuer in an issue. 
 When the defence stated in an action is the setting up of a 
 counter claim, defender is the pursuer of that issue, but he 
 is not the pursuer of an action. Rule 81 of the Sheriff Courts 
 Act, 1907, does not apply to him. Ho is not entitled to abandon 
 the counter claim in the same way, and on the same conditions, 
 as the pursuer may abandon his action under Rule 81. If a 
 defender states a counter-claim defence, and later on does not 
 desire to proceed with it, the appropriate course is, not to lodge 
 a minute offering to abandon his defence under Rule 81, but
 
 170 DEFENDED CAUSE. 
 
 to put in a minute stating that he does not insist upon his 
 defence, in whole or in part. 
 
 Appendix, Rules 55, 81. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 81. 
 
 409. These considerations suggest the desirability of a 
 defender considering carefully all the possibilities before elect- 
 ing to state his counter claim in his defences. In very many 
 cases it may be a saving of time and expense, but, if there is 
 substance in the counter claim, and especially if the statement 
 of it necessitates a narrative which is not a direct answer to 
 pursuer's condescendence, it may be safer practice to bring a 
 cross-action, and, at the appropriate stage, to move to have 
 the actions conjoined. 
 
 (e) Revised. 
 
 410. Revisal of pleadings is a matter which has in practice 
 always rested with the Sheriff. The Sheriff Court Act of 1870 
 expressly declared that " neither party shall be entitled as 
 "matter of right to ask for a revisal of his pleadings; but it 
 " shall be competent for the Sheriff to allow or order a revisal 
 "of the pleadings upon just cause shown." The Acts 1907- 
 1918 leave the matter also with the Sheriff, who " may, upon 
 " cause shown or ex proprio mod/, order a revisal of the 
 "pleadings." When alterations upon the original plead- 
 ings are material, it is always convenient to have 
 revised pleadings, but, of course, the revised statements must 
 be relevantly within the case, as sel forth in the initial writ. 
 The time for revisal is fixed by the Sheriff. If the papers are 
 not timeously lodged, the Sheriff may extend the time, or he 
 may give decree by default. 
 
 Appendix, Rules 49, 56. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 39 & 40 Vict. c. 70, s. 17. 49, 56. 
 
 2 & 3 Geo. V. c. 28, Sch. II. 
 
 (f) Productions. 
 
 411. Much time and trouble are often saved if documents 
 upon which either party relies are produced with the initial 
 writ. In a summary cause, if a document of debt is 
 founded on, it should be lodged with the Sheriff-clerk, along 
 with the initial writ, at the first calling. In an ordinary 
 action, productions founded on may be put in at any time up
 
 PRODUCTIONS. 171 
 
 to the closing of the record, or even later by leave of the Sheriff, 
 but delay is avoided if production is made early, for the Sheriff 
 may delay closing the record till production is made. The 1907 
 Act contains new provisions of practical importance, empower- 
 ing either party to insist upon documents being produced before 
 the closing of the record. Under the Act of Sederunt of 
 1839, a defender who founded on documents not in his own 
 hands might obtain diligence to recover them, but the pursuer 
 could not insist upon their production if the defender failed 
 to put them in. Under the 1876 Act, parties were bound to 
 produce only documents in their own hands, and neither could 
 compel the other. But under the 1907 Act any party may 
 obtain diligence for recovery of documents which are founded 
 on by any other party in his pleadings, and each party is 
 bound to make production " if required by any other party 
 " in the action, or by the Sheriff." Non-implement by a party 
 of an order to produce documents within his control would be 
 default in the sense of Rule 56, entitling the other party to 
 deoree. 
 
 Appendix, Rules 47, 48, 56. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 39 & 40 Vict, c. 70, s. 22. 47, 48, 56. 
 
 Act of Sederunt, 1839, s. 33. 
 
 412. Before the record is closed, a party is entitled to call 
 upon his opponent to produce documents, only if they are 
 founded on by the opponent. It is not enough that a party in 
 his own pleadings makes reference to a document, or that he 
 himself founds on it ; for one party can only force disclosure 
 of documents which are founded upon by the other parties. 
 A party cannot, for instance, by merely saying in his own 
 pleadings that certain transactions have been treated in a 
 particular way in his opponents' books, get a diligence to 
 discover these books before the record has been closed. 
 
 Wright v. Valentine, 1909, 26 S.C.R. 26, 151. 
 
 413. Production of documents founded on before the closing- 
 of the record is for the purpose of enabling parties to properly 
 state their pleas against each other. The mere fact that 
 production may disclose more than other parties in the case 
 are at that stage entitled to know, is not pleadable as an excuse 
 for non-production. The statutory rule gives a quite unquali- 
 fied right to each party in a cause to see the documents founded
 
 172 DEFENDED CAUSE. 
 
 on in the pleadings of all the other parties, and to see them 
 before the record is closed. This right arises to him simply 
 upon the fact thai the productions are founded on, and are 
 within the control of the party founding on them. The Court 
 has no discretion to inquire into the object of insistence by a 
 party upon production, but must, "if required by any other 
 " party," order production. 
 
 Appendix, Rule 47. Craig v. North British Railway 
 
 7 Ed. VII. c. 51, Sch. L, Rule Company, 1888, 15 R. 808. 
 
 47. Brady v. Story, 1896, 3 S.L.T. 
 
 325. 
 
 414. Where, however, the documents are in the hands of 
 third parties, the Sheriff has a discretion as to granting dili- 
 gence to recover them. He will probably grant diligence 
 before the closing of the record in every case where it appears 
 to be reasonably necessary that a party, for the purpose of 
 stating pleas, must see the documents themselves, as, for 
 instance, when the authenticity of a document is challenged; 
 but when the object of seeking production is merely to support 
 facts which can be stated without reference to the actual docu- 
 ments, the granting of diligence for recovery will probably be 
 regarded as more appropriate after the record has been closed. 
 
 Appendix, Rule 48. Dalgleish v. Mathieson, 1902, 10 
 
 Hope v. Hope's Trustees, 1895, S.L.T. 56. 
 
 3 S.L.T. 45. Caledonian Railway Company v. 
 
 Matheson v. Scottish Trade Pro- Crockett, 1902, i0 S.L.T. '89. 
 
 tection Society, 1897, 5 S.L.T. 
 
 213. 
 
 (g) Adjustment. 
 
 415. Under the older statutes the meeting for adjustment 
 of pleadings was a ceremonial affair, and minute directions 
 were laid down as to what might be done in the way of altering 
 pleadings. The 187G Act made the adjustment diet a formal 
 step in the process. The Acts 1907-1913 also recognise this, 
 and fix a time for the adjustment diet, which is a formal Court 
 diet, and is to be held on the first ordinary Court day occurring 
 not less than four days after defences have been lodged. There 
 is no direction for transmission of the process to the Sheriff 
 before this diet, as there was in the 1876 Act. In fact, it is 
 in the adjustment roll that the Sheriff first sees and applies 
 his mind to the pleadings. He has made the acquaintance of 
 the case, no doubt, before, at the tabling diet, but that was a
 
 ADJUSTMENT. 173 
 
 merely formal acquaintance. In the interval the defences have 
 been lodged with the Sheriff-clerk, according to the statutory 
 directions, and automatically the case appears in the adjustment 
 roll. The adjustment diet may be adjourned once only, " unless 
 " upon special cause shown," and the brief direction of the 
 statute then is, "When the pleadings have been adjusted the 
 " Sheriff shall close the record." These rules, read together, 
 mean that, when the parties have had reasonable opportunity 
 afforded them (at the adjustment diet, and at one and possibly 
 more adjourned diets) of adjusting their pleadings, the Sheriff 
 may hold the pleadings as adjusted, and close the record. 
 
 Appendix, Rules 52, 53. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 16 & 17 Vict. c. 80, s. 4. 44, 52. 
 
 39 & 40 Vict. c. 70, s. 18. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 Act of Sederunt, 1839, s. 34. 
 
 416. There is no specific provision in the statute to enable 
 one party to compel another party to adjust. But the general 
 power of the Court to fix peremptory diets, and make peremp- 
 tory orders, is quite wide enough, and quite flexible enough, 
 to afford a remedy against any dilatory abuse of the process 
 regulations. The pleadings are presumed to be adjusted when 
 the parties meet in Court, not less than four days after the 
 defences have been lodged. At that diet, or at an adjourned 
 diet, the Sheriff may hold the pleadings as adjusted and close 
 the record. He is the sole judge of the point of time at which 
 the pleadings are to be held as adjusted, and the record closed. 
 
 Appendix, Rule 52. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 52. 
 
 417. The Sheriff also is the sole judge of what is sufficient 
 cause to warrant an adjournment of the adjustment diet. It 
 is often true economy of time to permit adjournment, so that 
 one or other of the parties may procure information to enable 
 pleadings to be accurately stated, and the real controversy 
 between the parties to be disclosed. Judicious adjournment 
 also frequently tends to encourage settlement of litigation. 
 But the spirit of the rule is that dilatoriness in adjusting 
 pleadings is to be discouraged, and, where dilatory tactics are 
 being pursued, this rule may be effectual to stop them. 
 
 418. If a pursuer has laid his case upon averments clearly 
 inconsistent with each other, the Court may, as part of the
 
 17 1 DEFENDED CAUSE. 
 
 adjustment of pleadings, require him to elecl upon which set 
 of averments he is to rest his case. If this is not made clear 
 before the record is closed, the action will probably be dismissed 
 as irrelevant. 
 
 Ross v. Ross, 1878, 5 R. 1013. Pollock v. Old Park Forge Com- 
 
 Baines & Tait v. Compagnie des panv, 1907, 15 S.L.T. 3. 
 
 .Mines d'Asphalte, 1879, 6 R, Braby r. Danks, 1907, 15 
 
 846. S.L.T. 161. 
 
 Macguire v. Smith, 1889, 27 Leggat v. Cray, 1908, S.C. 67. 
 
 S.L.R. 14. Barclay, Curie & Company v. 
 
 M'Laren r. Preston, 1893, 1 Laing, 1908, S.C. 82. 
 
 S.L.T. 75. American Mortgage Company v. 
 
 M'Sorley v. Paisley .Magistrates, Sidway, 1908, S.C. 500. 
 
 1902. 10 S.L.T. 86. Shankland & Company r. 
 
 Millar & Lang v. Poole, 1907. 15 M'Gildowny, 1912, S.C. 857. 
 
 S.L.T. 76. 
 
 419. Part of the process of adjustment of pleadings is the 
 authentication by the Sheriff's initials of alterations made on 
 the pleadings. This was a direction of the Act of Sederunt 
 of 18-39, which is repeated in the Act of 1907, but this is merely 
 for identification. The fact that the Sheriff has initialled an 
 alteration does not mean that lie has approved of it as relevant. 
 It was never necessary for t lie agents to initial alterations 
 made at adjustment, and their doing so tends to confusion. 
 It is sufficient that they direct the Sheriff's attention to the 
 alterations, and that he alone initial them. An alteration 
 made, even of consent, upon the pleadings, after the recoid 
 has been closed, is not adjustment, but amendment, which can 
 be made only by leave. 
 
 Appendix, Rule 53. Egleton v. Flowerdew, 1849, 11 
 
 16 & 17 Viet, c. 80, s. 4. D. 1486. 
 
 7 Ed. VII. c. 51, Sch. I , Rule Kilcoyne r. Wilson, 1907, S.C. 
 
 53. 86. 
 
 Act of Sederunt, 1839, s. 45. 
 
 (li) Conjunction. 
 
 420. Either before the closing of the record or afterwards, 
 a motion may be made for conjunction of contingent actions. 
 There is no statutory direction as to this, but it has always 
 been the practice that, where two or more processes are before 
 the Court, relating to the same subject-matter, expense should 
 be minimised by conjoining them, and conducting them there- 
 alter as ene process. This may be done at any stage, but, 
 where the actions are both pending, a convenient stage for 
 conjunction is at the adjustment. To warrant actions being 
 conjoined, they must have contingency. What will amount
 
 CONJUNCTION. L75 
 
 to that is a question of circumstances, but it must be something 
 more than merely that inquiry into tlio facts set forth in the 
 one action might throw some light upon the other action. 
 
 M'Leay v. Rose, 1826, 4 S. 486. Western Bank v. Douglas, 1860, 
 
 Shand v. Shand, 1832, 10 S. 384. 22 D. 447. 
 
 M'Dowall r. Campbell, 1838, 16 
 S. 629. 
 
 421. As a general rule, actions will not be conjoined if 
 the one is at a much more advanced stage than the other, nor 
 where the one is for recovery of a liquid, and the other of an 
 illiquid claim, nor where the actions are different in their 
 nature, nor where the defence in the one action is upon 
 different grounds from that in the other ; nor will actions be 
 conjoined if the effect of conjunction would be to give one 
 party any advantage over another. 
 
 National Exchange Company v. Drew, 1861, 23 D. 1278. 
 
 422. Conjunction is competent, even although the parties 
 to the actions may be different, if the subject-matter is the 
 same (in cases under the Employers' Liability Act, 1880, not- 
 withstanding the injuries are different), as where two or more 
 pursuers are making the same demand upon the same defender, 
 or where two or more defenders are resistino- the same claim 
 of a pursuer upon the same pleas. The actions formerly 
 required to be before the same Court, but the wide scope of 
 the transfer powers of the Sheriff under the Sheriff Courts Act, 
 1907, practically amounts to effecting conjunction of actions 
 raised in different Sheriff Courts. The Sheriff may remit a 
 cause to another district or another sheriffdom " upon sufficient 
 "cause," and the avoiding of several litigations to settle the 
 same dispute, by remitting actions in which there is contingency 
 to one Court for conjunction, would probably be regarded as 
 very " sufficient cause." 
 
 Appendix, Rule 20. Duke of Buccleuch v. Cowan, 
 
 43 & 44 Vict, c. 42, s. 6. 1866, 4 M. 475. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Gatt v. Angus Ship Company, 
 
 20. 1907, 14 S.L.T. 749 
 Lindsay v. Chapman, 1826, 4 S. 
 
 496. 
 
 423. A Sheriff Court process may be conjoined with a Court 
 of Session process at any time before decree has been pronounced 
 in the Sheriff Court, by removal of the Sheriff Court action ob
 
 17G ])i:fi;m)K1) cause. 
 
 contingentiam, under the powers of the Court of Session Act, 
 1868. Section 74 of that Act authorises a Sheriff Court 
 process to be transmitted to the Court of Session, upon the 
 ground that there is a contingency between it and a pending 
 Court of Session process, and then it is within the power of the 
 Court of Session to conjoin the actions. This, however, it 
 will 1).' observed, is not a Sheriff Court step of process. The 
 Sheriff does not consider, and docs not decide, the question of 
 contingency, nor does he order conjunction. The motion for 
 transmission of the process is made, not in the Sheriff Court, 
 but in the Court of Session, to whom the party moving for 
 conjunction presents a copy of the Sheriff Court pleadings 
 certified by the Sheriff-clerk. The Sheriff makes no order 
 at all. Transmission of the process is made by the Sheriff- 
 clerk upon the direct order of the Court of Session. 
 
 31 & 32 Vict, c. 100, s. 74, 75. Wilson v. Junor, 1907, 15 S.L.T. 
 
 M'Fadyen v. United Alkali 182. 
 
 Company, 1897, 4 S.L.T. 321. 
 
 424. Actions which have been conjoined may, in the dis- 
 cretion of the Court, be disjoined, but this is a very 
 inconvenient proceeding, and it is not usual to order disjunction 
 unless upon very sufficient cause shown. Occasions do arise, 
 however, in which actions, which have been conjoined for 
 process purposes, ought to be disjoined before judgment is 
 given, as, for instance, an ordinary action and a summary 
 cause which have been conjoined to avoid the expense of 
 separate proofs. 
 
 Turner v. Turner, 1864, 2 M. 509. 
 
 (ij Closing Record. 
 
 425. The closing of the record is an important process step, 
 and, as it forecloses either party from making alterations 
 without leave, it is the interest of both to see that the pleadings 
 of each are complete before the record is closed. Formerly 
 a record was regarded as closed only quoad averments of fact, 
 and it was considered that pleas in law might be added at any 
 stage, without special leave of the Court ; but modern practice 
 regards the closed record as the full statement of the whole 
 case, both in tad and in law, and the addition or deletion 
 of a plea in law is now regarded as an amendment, although 
 a plea in law is generally allowed to be added without any
 
 CLOSING RECORD. 177 
 
 award of expenses. The Sheriff Court Acts, 1907-1913, 
 expressly direct that the pursuer's pleas in law shall be set 
 forth in the condescendence, and the defender's pleas in law 
 in the defences, and it is upon these pleadings that the record 
 is closed after adjustment. All pleas, whether preliminary or 
 on the merits, should be stated before the record is closed. 
 
 Appendix, Rules 2, 43. Thorburn v. Dempster, 1900, 2 
 
 7 Ed. VII. c. 51, Sch. I., Rules F. 583. 
 
 42, 46. 
 
 426. In a summary cause the record is not necessarily 
 closed, because in the general case there are no formal plead- 
 ings ; but where formal pleadings are tendered, the Court may 
 receive them, or the Court may order them. If there are 
 pleadings, they should be adjusted, and the record closed, in 
 the same manner as in an ordinary action, but this is not a 
 statutory requirement, and will be regulated by order of the 
 Sheriff. 
 
 Appendix, s. 8, Rule 41. 7 Ed. VII. c. 51, s. 8, Sch. I., 
 
 Rule 41. 
 
 427. When the record has been closed, it is the duty of the 
 pursuer within six days to lodge in process a certified copy 
 of the closed record for the use of the Sheriff. This has been 
 commonly done since typed pleadings became common, but 
 there was always a doubt about whether the expense of it was 
 a proper party and party charge. Besides, it was not the 
 dvty of either party to furnish a copy. The Act of 1913 has 
 now laid this duty upon the pursuer. 
 
 Appendix, Rule 52. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 (j) Interim Decree. 
 
 428. An interim decree is a judgment of the Court dis- 
 posing of some part of the cause, but not dealing with the 
 whole crave of the action. In some special circumstances, 
 chiefly in separation or adherence and aliment causes, an 
 interim decree may be granted before the record is closed, but 
 an interim decree is not generally granted till the Sheriff has 
 applied his mind to the case, and this he does not do till the case 
 is being adjusted. When the case reaches the adjustment roll, 
 the whole case should be disclosed, and the propriety of granting 
 interim decree can then appropriately be considered. 
 
 12
 
 178 DEFENDED CAUSE. 
 
 429. Immediately upon the closing of the record, and at 
 the closing diet, without previous notice of motion, it is 
 competent for pursuer to move for interim decree. If such a 
 motion is not made till later, it must be intimated and enrolled 
 in the usual way, but at the closing diet the defender is present 
 or represented, and so requires no notice. Interim decree may 
 be moved for, either in an ordinary action or in a summary 
 cause. In the latter, the proper stage is at the first calling, 
 when pleas are noted. An interim decree may be craved when- 
 ever, upon the adjusted pleadings, or upon the noted pleas, 
 it clearly appears that there is a partial admission by defender 
 of the claim or demand made by the pursuer. 
 
 430. An interim decree granted in an Ordinary Court 
 process is appealable to the Sheriff if it is (a) in an interdict ; 
 (b) making an order ad factum praistandiim. An interim decree 
 is appealable either to the Sheriff or to the Court of Session, 
 if it is for payment of money (other than expenses). It is to 
 be observed that only a decree ordering payment of money is 
 appealable, that is to say, an interim decree ordaining a 
 defender to pay to a pursuer some portion of the money con- 
 cluded for. An order to consign is not an interim decree for 
 payment of money to a party in the cause, and so is not an 
 interim decree for payment of money in the appeal sense, but 
 it is an order ad factum prastandum, and as such is appealable. 
 An interim decree, however, authorising the Clerk of Court to 
 pay oid consigned money to a party is an appealable interim 
 decree for payment of money. 
 
 Appendix, s. 27, 28. Sinclair v. Baikie, 1884, 11 R. 
 
 7 Ed. VII. c. 51, s. 8, 27, 28. 413. 
 
 Baird v. Glendinning, 1874, 2 Menzies v. Templeton, 1896, 12 
 
 R. 25. S.C.R. 323. 
 Balerno Paper Mills Company v. 
 
 Mackenzie, 1882, 10 R. 1147. 
 
 431. An interim decree follows the usual practice of 
 decrees in foro as regards extract and diligence. An interim 
 decree in a summary cause is extractable in seven days, and 
 in an ordinary action in fourteen days, but an interim decree 
 is that in which the Sheriff is most likely to exercise his power 
 of allowing earlier extract. 
 
 Appendix, Rule 85. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 85.
 
 CONSIGNATION. 179 
 
 (k) Consignation. 
 
 432. The defender, whilst partially admitting the pursuer's 
 claim, may so qualify his admissions as not to warrant an 
 interim decree being granted, as, for instance, he may admit 
 holding a fund or a subject, but claim a lien or right of reten- 
 tion over it, or he may make general admissions which show 
 that a balance will ultimately be due, but is not yet due ; or 
 he may admit a debt, but dispute the pursuer's title to sue for 
 it; or he may admit an ex facie document of debt, but propose 
 to attack it ojje exceptione. The pursuer may, at the closing 
 of the record, and without previous notice of motion, ask the 
 Sheriff to order the defender to consign the fund admittedly 
 held by him, or to consign a general sum, or to place a subject 
 in neutral custody. An order for consignation does not decide, 
 or affect, any question raised in the case, and is merely a 
 preservation order. A sum of money is ordered to be consigned 
 in the hands of the Sheriff-clerk. A subject is usually placed 
 in a public store. In a summary cause, an order for con- 
 signation should be moved for when pleas are noted. 
 
 433. A note certifying the consignation is put by the 
 Sheriff-clerk on the interlocutor sheets. It is also recorded in 
 the consignation record kept by the Sheriff-clerk, and which 
 is to be made patent to interested parties or their agents. 
 
 Act of Sederunt, 27th Jan., 1830, s. 5. 
 
 434. In any process for the distribution of the estate of a 
 deceased person, a consigned fund is not to be paid out till 
 the Sheriff-clerk has seen a certificate by the proper revenue 
 officer, that estate, legacy, or succession duties have been duly 
 settled. 
 
 Act of Sederunt, 1st July, 1908. 
 
 435. A defender may voluntarily make consignation, if it 
 is his interest to do so (as, for instance, in order to found a 
 claim for expenses if pursuer ultimately gets judgment for 
 less than the consigned sum), and the Court in its discretion 
 may order, or refuse to order, consignation. In two cases 
 consignation is statutory (a) when the defence to a claim based 
 upon a bill of exchange is an attack upon the validity of the
 
 180 DEFENDED CAUSE. 
 
 bill, under section 100 of the Bills of Exchange Act, 1882; (b) 
 when the defence is a challenge ope c.rceptione of a deed, where 
 an action of reduction would be competent. The Court has 
 also a discretion, under the Sale of Goods Act, 1893, to order 
 consignation of, or caution for, the price, or part thereof, where 
 a seller sues for the price of goods which a buyer might have 
 rejected, but which he has elected to retain and claim an 
 abatement. 
 
 Appendix, Rule 51. Finlay & Co. v. Donaldson, 1846, 
 
 45 & 46 Vict. c. 61, s. 100. 5 Bell's Ap. Ca. 105. 
 
 56 & 57 Vict. c. 44. Cowan v. Western Bank, 1860, 
 
 56 & 57 Vict. c. 71, s. 59. 22 D. 1260. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Rolfe v. Drummond, 1862, 1 M. 
 
 51. 39. 
 Cumming v. Williamson, 1842, 4 
 
 D. 1304. 
 
 (1) Realisation. 
 
 436. If the action relate to goods of a perishable nature, 
 or to live stock, the cost of keeping which during a litigation 
 may be considerable, either party may move for the realisation 
 of the goods or stock, and consignation of the proceeds. If 
 this is intended to be moved for, previous notice should be 
 given, and the most convenient mode probably is to include 
 in the crave in the initial writ a conclusion for a present 
 warrant of sale. If it is not considered necessary, or advisable, 
 to realise the subject of action, the Sheriff may, upon the 
 motion of either party, make an order for its present safe 
 custody. 
 
 (m) Preliminary Pleas. 
 
 437. The record having been closed, the direction of the 
 Sheriff Courts Act, 1907, is that, " if preliminary pleas have 
 " been stated, the Sheriff shall first dispose of them, unless 
 " he thinks that, from their being connected with the merits, 
 " or on any other ground, they should be reserved till a future 
 " stage of the cause." This is merely a statutory expression 
 of recognised Court practice. The broadened jurisdiction, the 
 introduction of jury trial, and the provisions generally of the 
 recent Sheriff Courts Acts emphasise the desirability, wherever 
 possible, of disposing of, and not reserving, preliminary pleas, 
 as, for instance, in an action laid under the Employers' 
 Liability Act, where the defender pleads that the statutory 
 notice of claim was not timeously given, that should be decided, 
 and, if necessary, a preliminary proof taken upon it, before
 
 PRELIMINARY PLEAS. 181 
 
 proof on the merits is ordered. Dismissal of an action in the 
 Sheriff Court, upon a plea of relevancy, does not ground a 
 plea of res judicata in a similar action subsequently brought 
 in the Court of Session. 
 
 Appendix, Rule 54. Duncan r. Fife Coal Company, 
 
 7 Ed. VII. c. 51, Sch. I., Rule 1905, 7 F. 958. 
 
 54. Sinclair r. Lochgelly Iron Com- 
 
 Docherty v. M'Alpine, 1899, 2 pany, 1905, 13 S.L.T. 103. 
 
 F. 128. Govan Old Victualling Society, 
 
 Hunter v. Darngavcl Coal Com- Limited, v. Wagstaff, 1907, 
 
 pany, 1900, 3 F. 10. 44 S.L.R. 295. 
 
 438. Formerly pleas in defence were classed under (a) 
 " dilatory " defences, which included every kind of plea which, 
 if sustained, rendered inquiry upon the merits of the cause 
 unnecessary, as, for instance, no jurisdiction, incompetency, 
 irrelevancy, &c. ; and (b) " peremptory " defences, which 
 included every kind of plea which, although preliminary in 
 its nature, yet necessitated some inquiry into, or admission 
 of, facts, as, for instance, prescription, res judicata, lis alibi 
 pendens, bar, &c. In modern practice these refined dis- 
 tinctions are not maintained, and pleas in law are regarded 
 as "preliminary" pleas if they are such as, being sustained, 
 render inquiry upon the merits of the cause unnecessary, and 
 themselves afford a ground for final judgment in the cause, 
 and " pleas on the merits," if they are such as cannot be either 
 sustained or repelled without some inquiry into the merits of 
 the cause. Many preliminary pleas are also pleas on the 
 merits, and how such a plea is to be treated depends greatly 
 upon the manner in which the pleadings are framed. If there 
 are agreed facts, upon which it is based, it may be disposed of 
 without proof. If the facts are not agreed, it may be necessary 
 to have a proof primo loco upon these particular facts. 
 
 Hunter v. Darngavel Coal Com- M'Lean v. Hassard, 1903, 10 
 
 pany, Limited, 1900, 3 F. 10. S.L.T. 107. 
 
 439. A preliminary plea has this characteristic in common 
 with a plea on the merits, that it must be founded upon 
 averments in the pleadings. The averment, and the plea 
 founded upon it, ought together to present a legal proposition 
 complete in itself, without reference to other pleas which may 
 be stated. The Sheriff cannot dispose of a plea, unless he 
 have before him not only the stated plea, but also facts upon
 
 182 DEFENDED CAUSE. 
 
 which thai plea is based. If. for instance, a plea that the 
 action is incompetent is based upon a statutory bar of ad ion, 
 the statute must be averred in the pleading as well as Hie 
 plea stated; or, if the plea is, "all parties not called," the 
 mere inclusion of these, in themselves meaningless, words in a 
 list of pleas does not state a plea in law, unless the pleading 
 set forth the other parties who should have been called, or if 
 objection is taken to the pursuer's title, the objection must be 
 set forth. It is convenient, so far as possible, to confine a 
 specific numbered article in the pleading to the narration of the 
 particular fact upon which a specific numbered plea in law 
 is based. Sonic preliminary pleas, however, such as incom- 
 petency and irrelevancy, are based, not upon specific averments, 
 but upon the nature of the ease as laid, or the pleadings as a 
 whole. General statements are not pleas in law, and only 
 cumber a process. A condescendence, for instance, which 
 pleads nothing more specific than " in the circumstances set 
 "forth decree should be granted," is not in accordance with 
 the statute, for pursuer and defender are both required to set 
 forth, not only their grounds of action or of defence, but also 
 their pleas in law, and such general words as those above quoted 
 (and much too commonly used) are not a statement of a plea 
 in law. 
 
 Appendix, Rules 2 and 43. North British Railway Company 
 
 7 Ed. VII. c. 51, Sch. I., Rule v. Brown, 1857, 19. D. 840. 
 
 42. Young v. Graham, I860, 23 D. 
 
 Struthers r. Dykes, 1845, 7 D. 36. 
 
 436 M'Kinnon v. M'Kinnon, 1905, 7 
 
 F. 589. 
 
 440. A preliminary plea, which should iii no case be 
 reserved, is that of incompetency. If an action is incompetent, 
 it is, of course, waste of time to consider other pleas. An 
 action may be incompetent (a) because its object is not attain- 
 able in a civil process at all ; or (b) because law or contract has 
 provided some other remedy than a Court process for the cause 
 of action, as, for instance, arbitration ; or (c) because some 
 other form of action is alone appropriate to the circumstances; 
 or (d) because some necessary statutory or other condition- 
 precedent has not been complied with, as, for instance, an 
 action against a company in liquidation which has been brought 
 without first obtaining the sanction of the Court under whose 
 supervision the liquidation is proceeding, as required by the 
 Companies Act; or (e) because of the manner in which the
 
 PRELIMINARY PLEAS. 183 
 
 particular action is laid, as, for instance, when it is laid under 
 statute instead of at common law, or vice versa. It is pars 
 judicis to take notice of some forms of incompetency, and the 
 Court may dismiss an obviously incompetent action, although 
 no party in it has stated an incompetency plea. A party who 
 has stated a plea of incompetency should be careful not to act 
 inconsistently with his plea, as he might be held to have waived 
 it. 
 
 M'Kenzie v. Campbell, 1829, 7 M'Aulay v. Mackenzie, 1830, 9 
 
 S. 899. S. 48. 
 
 Hamilton v. Murray, 1830, 9 S. North British Railway Company 
 
 143. v. Carter, 1870, 8 M. 998. 
 
 441. Although the action is competent, it may not be 
 relevantly stated, and a preliminary plea may be stated to the 
 effect that the averments made do not support the crave. 
 Formerly, if a plea of irrelevancy were sustained, the action 
 was dismissed, and this is a proper course; but the Sheriff's 
 powers of amendment are now so wide that a common course is 
 to allow the party whose pleading is found irrelevant to amend 
 it, upon the condition of payment of certain expenses to the 
 other party. This course is competent, however, only where 
 the averments are merely defective or wanting in specification. 
 If they are altogether inept to support the craving or pleas, 
 the only course is to reject the pleading altogether, and to 
 dismiss the action, leaving the pursuer free to bring a fresh 
 action, if he can relevantly re-state his case. 
 
 442. An action is irrelevant wherever the facts set forth, 
 assuming them to be proved, do not in law infer the result 
 deduced from these facts ; and a pleading is irrelevant when 
 the facts set forth in it do not warrant the plea in law based 
 upon these facts. Pleadings may be irrelevant also, even if the 
 facts, in their nature, do infer the law deduced from them, if 
 the facts themselves are not set forthwith sufficient specification. 
 Competency and relevancy pleas are often confused. Broadly 
 speaking, an action is incompetent when the crave of the 
 initial writ cannot be granted by the Court in which the action 
 is brought. 
 
 443. A pleading is not. relevantly stated if it fails to comply 
 with what is the essential requirement, alike of the Sheriff 
 Court statutes and the recognised rules of honest pleading,
 
 184 DEFENDED CAUSE. 
 
 that is to say, if it falls short of frankly disclosing the legal 
 proposition which it is intended to plead, and ultimately to 
 ask the Court to give effect to. For one party to so frame his 
 pleadings as to leave the other party as much as possible in 
 the dark as to their ultimate object, is not clever pleading, 
 although it is sometimes mistaken for it, and is contrary to 
 the spirit of frank disclosure on record, which has been the 
 ruling principle of all the Sheriff Courts Acts during the last 
 seventy years, and is a conspicuous feature of the recent 
 statutes. 
 
 444. The question of relevancy must be raised by a plea 
 being stated. The Court may ex proprio motu dismiss an action 
 which is incompetent, but not one which is merely irrelevant. 
 This question of relevancy arises, therefore, only in actions 
 which are defended. Such a plea must be stated at once, and 
 parties must be heard upon it. If not stated, or insisted in at 
 the proper time, it is held as waived. When a case has been 
 allowed to go to trial upon a closed record, without the 
 relevancy having been challenged, neither party will be lightly 
 permitted to add a relevancy plea. Formerly a party was 
 held to have waived his right to do so, but the amendment 
 powers of the Sheriff Courts Acts are now so broad that 
 possibly this rule cannot now be regarded as absolute. If, 
 however, the amendment power is wide, so also is the Sheriff's 
 power of imposing amendment conditions ; and if the question 
 of relevancy is permitted to be raised after the case has been 
 sent for trial, the condition imposed will, no doubt, be payment 
 to the other party of his whole expenses to the date of amend- 
 ment, or at, at least, a substantial sum of expenses. In a sum- 
 mary cause, where there is no formal record made up, an 
 interlocutor appointing a diet for the trial of the cause will 
 foreclose the question of relevancy, to the same effect as an 
 interlocutor in an ordinary action closing the record. 
 
 Appendix, Rules 44, 79. M'Kendrick v. Robertson, 1870, 
 
 9 M. 283. 
 
 445. If a plea to the relevancy is sustained, the action will 
 be dismissed, which is a final appealable judgment. But it 
 is not absolutely essential that a relevancy plea be disposed of 
 upon the closed record, without inquiry upon the merits. In 
 a certain sense a judgment upon relevancy is a judgment upon
 
 PRELIMINARY PLEAS. 185 
 
 the merits, for it is based upon the assumed accuracy of the 
 facts stated. But, whilst it is always competent, it is some- 
 times unsafe, to dispose of a relevancy plea upon the closed 
 record alone. The Court has " a discretionary power to 
 " determine law or relevancy before trial, and in certain cases, 
 " such as cases of fraud, to which special rules are applicable, 
 " there may be strong expediency in doing so ; but in the 
 "general case the discretion is one to be cautiously exercised, 
 " and by no means as a matter of course in every case." 
 Earl of Galloway v. Grant, 1857, 19 D. 865. 
 
 446. The Court is frequently hampered in the disposal of 
 a relevancy plea by a want of candour in the pleadings, to 
 minimise which evil is the object of the express enactment of 
 the Sheriff Courts Act, 1913, that a party not denying a fact 
 averred within his knowledge is held as admitting it. The 
 answer, much too commonly employed in defences, " not known 
 " and not admitted/' is no doubt a quite admissible form of 
 pleading, and there are many statements to which no other 
 answer is possible, because the defender's means of obtaining 
 knowledge of the facts do not permit him either categorically 
 to admit, or deny, the statement he is required to answer. 
 But there are many instances also in which an answer of this 
 sort need not be made, and in which the making of it leads 
 to much delay and expense, which might have been avoided 
 by a candid answer, as, for instance, where a case depends 
 for its relevancy upon the meaning of a non-probative document 
 produced. If the fact of the existence of the document (as a 
 document, apart from its legal effect) is admitted on record, 
 the Court can proceed to interpret the document in a relevancy 
 question ; but if, to the averment that there is such a docu- 
 ment, the defender answers, " Not known," or, " The document 
 " is referred to," or in some way falls short in his answer of 
 acknowledging for relevancy purposes, that the document 
 exists, or that it was signed by a particular person, or on a 
 particular date, or the like, then the Court must have the 
 document proved before it can construe it, and a proof may be 
 necessary to establish the identity of a document in regard to 
 the existence of which there never was any real dispute, what- 
 ever difference of opinion there may have been as to its legal 
 effect. If for such a reason, or for any other sufficient reason, 
 it appear to the Court that a relevancy plea should be deferred
 
 186 DEFENDED CAUSE. 
 
 pending inquiry, (hen the course is to allow a proof before 
 answer. In a sense, every proof is a proof before answer, 
 but, where a relevancy plea lias been stated, an allowance of 
 proof before answer lias the technical meaning that the 
 relevancy plea is not disposed of, but reserved. After the 
 proof, the action may still be decided upon relevancy, but if 
 a plea to the relevancy is ultimately sustained the form of 
 judgment will be dismissal, not absolvitor. 
 
 Appendix, Rule 44. Moncrieff v. Sievwright, 1895, 
 
 2 & 3 Geo. V. c. 28, Sch. II. 33 S.L.R. 456. 
 
 Robertson v. Murphy, 1867, 6 
 M. 114. 
 
 447. Other preliminary pleas, such as no title to sue, all 
 parties not called, &c, follow the same rule as relevancy pleas. 
 If there is material before the Court for their disposal, they 
 should be disposed of rather than reserved, but if inquiry is 
 necessary before they can be dealt with, then a proof before 
 answer may be allowed. Amongst such pleas are what are 
 known as pleas in bar, which, admitting that ex facie an action 
 is regular, yet plead that pursuer is barred from pursuing it, 
 in respect of something which has happened prior to the action 
 being brought, as, for instance, mora, res judicata, lis alibi, 
 &c. There is, however, one preliminary plea which should 
 not be reserved unless in most exceptional circumstances. 
 The plea of no jurisdiction should be disposed of ante omnia, 
 and, if necessary, for its disposal, a limited proof of the facts 
 upon which it is based should primo loco be allowed. 
 
 M'Leod v. Tancrcd, Arrol & Company, 1890, 17 R. 514. 
 
 448. It is not proper to allow a proof before answer, upon 
 a plea for restriction of the proof. A plea, for instance, that 
 parole proof is incompetent, rnirst be disposed of upon the 
 pleadings, for, if it is well founded, an order for general proof 
 is inappropriate, and the proof should be restricted to writ or 
 oath in the interlocutor allowing proof. 
 
 Thomson r. Frazer, 1868, 7 M. Turnbull v. Oliver, 1891, 19 R. 
 
 39. 154. 
 
 449. An order for proof before answer does not, as is some- 
 times erroneously assumed, open the door to incompetent 
 evidence. A proof before answer means that every averment 
 made on record may meantime be substantiated by evidence,
 
 PRELIMINARY PLEAS. 187 
 
 but that must, of course, be competent evidence. The fact 
 that the proof allowed is proof before answer in no way alters 
 or relaxes the ordinary rules as to competency of evidence. 
 Robertson v. Murphy, 1867, 6 M. 114. 
 
 450. When there are mixed averments on record, some of 
 which may be proved parole, and some may not, the order for 
 proof should, strictly speaking-, discriminate between the two 
 classes of averments, proof j)ro ut de jure being allowed only 
 as regards averments which may be proved parole, the proof 
 as regards the other averments being restricted to writ or oath ; 
 but in practice in such a case a proof before answer may 
 appropriately be allowed, the question of competency of 
 evidence in regard to particular matters being reserved to be 
 dealt with at the diet of proof. 
 
 Stuart v. Stuart, 1869, 7 M. Davie v. Stark, 1876, 3 R. 1114. 
 
 366. 
 
 (n) Removal to Court of Session. 
 
 451. The preliminary pleas being disposed of, or reserved, 
 the next normal step in process is to allow a proof. But in 
 certain cases the Sheriff Court procedure may be interrupted 
 at the stage of closing the record, or within six days thereafter, 
 by the action being removed to the Court of Session. 
 
 Appendix, s. 5. Provisos 1, 2, 7 Ed. VII. c. 51, s. 5. 
 
 Rule 95. 
 
 452. Under the Sheriff Courts Acts, 1907-1913, at the 
 closing of the record, or within six days thereafter, a party 
 may require 'the removal to the Court of Session of (a) actions 
 relating to heritable right or title where the value of the subject 
 exceeds £1000, or £50 yearly; (&) actions relating to moveable 
 succession where the value exceeds £1000; (c) actions relating 
 to division of commonty, or division and sale of common 
 property, where the value exceeds £1000, or £50 yearly. 
 
 Appendix, s. 5, Proviso 1, Rule Acts of Sederunt, 10th March, 
 
 95. 1870, 5th January, 1909. 
 
 453. The consistorial jurisdiction conferred upon the Sheriff 
 Courts Acts, 1907-1913, is qualified by a power to either party 
 to remove the cause to the Court of Session. This may be 
 done at any stage of the case, but the most convenient stage 
 will be at the closing of the record. The evident contempla-
 
 188 DEFENDED CAUSE. 
 
 tion of the statutes is thai a case so remitted to the Court of 
 Session shall remain there for disposal, but it is within the 
 Court's discretion to send it back to the Sheriff Court. To a 
 limited extent this privilege of removal to the Court of Session 
 previously existed. An action brought under the Guardian- 
 ship of Infants Act, 1886, for instance, might be removed in a 
 manner exactly similar to that directed by Rule 95 of the 
 schedule of the 1907 Act. 
 
 Appendix, s. 5, Proviso 2, Rule 7 Ed. VII. c. 51, s. 5, Proviso 
 
 95. 2, Sch. I., Rule 95. 
 
 49 & 50 Vict, c. 27, s. 10. Acts of Sederunt, 14th April, 
 
 1908, 5th January, 1909. 
 
 454. At this stage also an action may be removed to the 
 
 Court of Session for jury trial. The Judicature Act of 1825 
 
 introduced the privilege of removing a cause from the Sheriff 
 
 Court (where jury trial was not then competent in civil causes) 
 
 to the Court of Session for trial by jury. This removal is 
 
 effected upon the initiative of a party. The Sheriff himself 
 
 has no power to remit for this purpose. As regards actions 
 
 by employees against employers, the jury trial provisions of 
 
 the 1825 Act have been repealed by the Sheriff Courts Acts, 
 
 1907-191-3, and a new system of jury trial set up in the Sheriff 
 
 Court, The privilege of appeal for jury trial applied originally 
 
 to all actions where a money claim was made of not less than 
 
 £40. The privilege remains as it was instituted in 1825, 
 
 except that the actions referred to have been excepted, and the 
 
 limit of value has been increased to £50. 
 
 Appendix, s. 32, Rule 95. 6 Ed. VII. c. 58, s. 14. 
 
 6 Geo. IV. c. 120, s. 40. 7 Ed. VII. c. 51, s. 30. 
 
 43 & 44 Vict. c. 42. 2 & 3 Geo. V. c. 28, s. 6, Sch. I. 
 
 (4) Judicial Reference. 
 
 455. Most actions which are not ordered for jury trial go 
 
 to trial before the Sheriff. But in certain special cases the 
 
 decision of the cause may be devolved upon a judicial referee, 
 
 in which event the function of the Sheriff is practically 
 
 restricted to granting a decree to make the judicial referee's 
 
 report operative. A judicial reference is competent at any 
 
 stage, but the convenient stage is at the closing of the record. 
 
 If made at a later stage, there are referred to the judicial 
 
 referee only such questions raised on record as have not already 
 
 been disposed of by the Court. 
 
 Lord Advocate v. Heddle, 1856, Brown's Trustees v. Home, 
 
 18 D. 1211 1907, S.C. 1027.
 
 JUDICIAL REFEEENCE. L89 
 
 45t>. A reference may be either of the whole or of part of 
 the cause, in the latter case by leave of the Court. It is only 
 competent to refer of consent of both parties, and, like all 
 procedure which requires consent, it is not frequently adopted. 
 The consent is expressed in a minute, which may be signed 
 by the party or his agent. If signed by the agent, he should 
 procure a special mandate. After the authority of the Court 
 has been interponed to the reference it can be recalled only of 
 consent. It is the parties, not the Court, who select the 
 referee (unless they leave it to the Court, as is sometimes done), 
 and the procedure is of the nature of a reference to an arbiter, 
 rather than a remit to a reporter. If the parties cannot agree 
 upon a single referee, each may nominate a referee, and the 
 cause is then referred to both. In that case the minute should 
 contain authority to the referees (although probably that is 
 implied) to name an oversman. In practice one referee is 
 selected. The procedure is in effect the subtitution of an 
 arbiter for a judge, and the proceedings before the referee 
 follow the practice in arbitrations. 
 
 Livingstone v. Johnstone, 1830, Walker v. Stewart, 1855, 2 
 
 8 S. 594. Macq. 424. 
 
 Reid v. Henderson, 1841, 3 D. 
 
 1102. 
 
 457. Although a judicial referee is selected, the character 
 of a Court process is not altogether lost, and the aid of the 
 Court may be invoked for such purposes as to compel the 
 attendance of witnesses before the referee, to recover docu- 
 ments, &c. The process also may fall asleep. The Court also, 
 although it may not review the referee's award on the merits, 
 may control its form, and may remit it back for correction 
 if it is informal, or incomplete, or if the referee has not 
 exhausted the reference. Objections which warrant the Court 
 interfering must, however, be substantial, and of such a nature 
 as might ground an action for reduction of an arbiter's award, 
 and must have been stated before the judicial referee. The 
 Court will not interfere with the referee upon trivial points 
 of form, or complaints as to his procedure, for the direction 
 of procedure is in the referee's hands, and, unless his actings 
 have been so grossly irregular, or corrupt, that his award might 
 be reduced, the Court w T ill hesitate to entertain objections to 
 the report of a judicial referee. The question of expenses 
 in the reference is disposed of by the referee, but the question
 
 190 1)i:ki:m)i;d cause. 
 
 of expenses of process may be left to be dealt with by the Court 
 in the usual way. The referee is entitled to a fee, and the Court 
 fixes his and his clerk's remuneration if it has not been agreed 
 upon. If one party has paid the referee's or clerk's fee, the 
 Court may decern the other party to reimburse his share. 
 
 Robertson v. Davidson, 1833, 11 Rogerson v. Rogerson, 1885, 12 
 
 S. 659. R. 583. 
 
 Edinburgh Oil Gas Company v. .Macrae v. Edinburgh Tramway 
 
 Baillie, &c, 1835, 13 S. 413. Company, 1885, 13 R. 265. 
 
 Drummond v. Leslie, 1835, 13 S. Edinburgh Water Trust v. Clip- 
 
 684. pens Company, 1902, 4 F. 
 
 Hilton v. Walker, 1867, 5 M. (H.L.) 40. 
 
 969. Macintyre v. Smith, 1912, 50 
 
 Watson v. Stewart, 1872, 10 M. S.L.R. 261. 
 
 494. 
 
 458. A judicial reference is competent in a summary cause 
 
 as well as in an ordinary action. In this process also it may be 
 
 made at any stage, but the appropriate time, where there are 
 
 not formal pleadings, will be at the diet when pleas are noted, 
 
 or, where formal pleadings are ordered, at the closing of the 
 
 record. Whether ordinary or summary, when the reference 
 
 is completed, the process comes back to the Court, so that 
 
 judicial authority may be interponed to the referee's report. So 
 
 far as regards either fact or law covered by the reference, the 
 
 decision of the referee is final. The Sheriff cannot review it 
 
 or alter it, but merely interpones authority to it, and, although 
 
 the judgment is thus in form a Court judgment, it is not 
 
 subject to review, because a reference to a judicial referee is 
 
 a final submission to him of the dispute. If the judicial referee 
 
 dies before making an award, the process reverts to its position 
 
 as at the date of the remit. 
 
 .Mackenzie v. Girvan, 1840, 3 D. Rogerson v. Rogerson, 1885, 12 
 
 318. R. 583. 
 
 (5) Remit to Man of Skill. 
 
 459. It is a competent, and convenient, mode of ascertain- 
 ing matters of fact, whether in an ordinary action or in 
 a summary cause, to remit to a man of skill to make a report. 
 This differs from a judicial reference in that it is only a mode 
 of ascertaining facts, upon which the Court is itself to 
 pronounce judgment, not a devolution of the cause upon a 
 referee for his decision. A judicial referee may decide both 
 upon fact and law. A judicial reporter can only report upon 
 matters of fact, except in special cases, as, for instance, in 
 the case of a skilled lawyer, who may express an opinion upon
 
 REMIT TO MAN OF SKILL. ]:i| 
 
 title deeds or the like. The object of a remit is not to supplant 
 the Sheriff, but only to assist him, by providing .1 basis of fact 
 for his judgment inlaw. As a report from a man of skill very 
 often renders proof unnecessary, or indeed incompetent, the 
 case should be completely stated before a rem it is made. A 
 motion to remit, therefore, will not in general be entertained 
 till the record has been closed, and should not, at all events, 
 be made till pleas in law have been disposed of. Bui it is, in 
 special circumstances, competent and convenient, for the infor- 
 mation of the Court, to make a remit before that stage is 
 reached, as, for instance, where interim interdict is craved, it 
 may be desirable, before deciding the question of interim 
 interdict, to have a skilled report upon the nature of the 
 operations which are complained of, and what remedial 
 measures could be adopted. The Sheriff Courts Acts leave the 
 time of making a remit an open question. 
 
 Appendix. Rule 60. Nisbet v. .Mitchell Innes, 1880, 
 
 7 Ed. VII. c. 51, Sch. I., Rule 7 R. 575. 
 
 60. Leonard v. Lindsay & Benzie, 
 
 Rose v. M'Leod, 1828, 7 S. 140. 1886, 13 R. 958. 
 
 Mushet v. Duke of Buccleuch, Kail of Kintore v. Pirie. 1906, 
 
 1851, 13 D. 715. 8 F. (H.L.) 16. 
 
 460. A remit to a man of skill may be made upon the 
 motion of both, or either, of the parties. Formerly doubt was 
 entertained as to whether the Sheriff could make a remit ex 
 liToprio motu, and the Sheriff Courts Act, 1907. did not remove 
 that doubt entirely, but Rule 60, read as a whole, seems to 
 mean that a remit may be made by the Sheriff at his own hand. 
 The expediency of making a remit is always in the discretion 
 of the Court. It is only when a remit is made with consent 
 of both parties (which in practice is held to mean on the 
 motion of one without objection by the other) that the report 
 of the man of skill is declared to be conclusive upon the matter 
 of fact with which it deals. It is in general the right of each 
 party in a cause to prove his case by leading evidence before 
 the Court, and, if either party insist upon taking this course, 
 it is very doubtful whether it is competent for the Court to 
 force him to accept a remit in place of proof. The reporter's fee 
 is fixed by the auditor, subject to revision by the Sheriff upon 
 objections to the auditor's report. 
 
 Appendix, Rule 60. Quiii v. Gardner, 1888, 15 R, 
 
 7 Ed. VII. c. 51, Sch. I., Rule 776. 
 
 60. Allen v. Tudhope, 1890, 6 S.C.R. 
 
 276.
 
 192 DEFENDED CAUSE. 
 
 461. The Sheriff Courts Act, 1907, settled a matter which 
 was often in dubiety, viz., who should bear the expense of a 
 remit made by the Court ex proprio motu. The Sheriff may 
 direct how the reporter is to be paid, failing such direction, 
 the parties are equally liable for the reporter's fee in the first 
 instance. Otherwise the practice in regard to remits remains 
 as it was — (a) where necessary for the information of the 
 Court, the Sheriff may make a remit ex proprio motu, but his 
 doing so does not necessarily exclude proof ; (b) where one party 
 moves for a remit and the other does not object, the Sheriff 
 is entitled, but not bound, to make a remit; if he does so, 
 the report is conclusive with respect to the matter of the remit ; 
 but (c) where either of the parties insists upon leading evidence 
 and objects to a remit, it is not competent to substitute a report 
 for proof. 
 
 Appendix, Rule 60. Sutherland v. Squair, 1898, 25 
 
 7 Ed. VII. c. 51, Sch. I., Rule R. 656. 
 
 60. Steel v. Steel, 1898, 25 R. 715. 
 
 Pearce v. Irons, 1869, 7 M. 571. Broxburn Oil Co. v. Morrison, 
 
 Kilmarnock Magistrates v. Reid, 1903, 5 F. 694. 
 
 1897, 24 R. 388. Barclay v. Bruce, 1904, 12 
 
 S.L.T. 100. 
 
 462. Notwithstanding that the report of a skilled reporter 
 has been obtained of consent, and is therefore conclusive as 
 to the facts, the parties are entitled to be heard upon the report 
 before it is adopted by the Sheriff, and the law applied to it. 
 Objection may be made to the report, on such grounds as that 
 the reporter has not exhausted the terms of the remit, or that 
 he has dealt with matters not remitted to him, or has made 
 errors in calculation, or the like, and the Court may direct the 
 reporter to take back his report, for revisal in the light of such 
 objections. The Sheriff may re-remit as often as may be 
 necessary to obtain a complete report, exhaustive of the original 
 remit. In general, a party may not object to the reporter's 
 findings in fact, but, where the report is based partly upon 
 facts and partly upon opinion in regard to these facts, the 
 reporter's whole grounds of opinion may be attacked, as, for 
 instance, an accountant's report in which certain figures are 
 accepted as facts, but how these figures should be arranged, 
 so as to present a true account, or whether they should appear 
 in a capital or income branch of the stated account, or how they 
 should be treated in a balance sheet, or the like, are matters 
 of opinion. It is competent to allow a proof upon objections
 
 REMIT TO MAN OF SKILL. L93 
 
 to a man of .skill's report; but such proof cannot, of course, 
 controvert the facts found by the reporter, and a proof will not 
 be readily ordered. 
 
 Fyffe v. Fvffe, 1840, 2 D. 1001. Cameron v. Anderson, 1844, 7 
 
 D. 100. 
 
 463. A remit to a man of skill is sometimes made, not to 
 ascertain facts, nor to inform the Court of facts, but to relieve 
 the Court of investigation work. The most familiar instance 
 of such a remit is that to the Auditor of Court to tax expenses 
 allowed, or to tax a professional account sued for. Such 
 a remit is not made upon motion, but by the Court, and the 
 report under it is not conclusive, and is of itself of no effect, 
 till it is adopted by the Court and an operative judgment 
 pronounced upon it. A remit of this sort is also sometimes 
 made to cany out the judgment of the Court, after the rights 
 of parties have been determined, as, for instance, in regard to 
 the removal of a nuisance. 
 
 Earl of Kintore v. Pirie, 1906, 8 F. (H.L.) 16. 
 
 464. The direction of the Sheriff Courts Act, 1907, as 
 regards the expense attending remits is (a) that, if made 
 upon motion of one, the party moving for a remit is liable in 
 the first instance; (b) that, if made upon joint motion, or by 
 the Sheriff ex proprio motu, " the expense shall in the first 
 " instance be paid by the parties equally, unless the Sheriff 
 " shall otherwise order " (which was recognised practice 
 always). It is to be observed that the liability is laid upon 
 the parties, not upon the agents, as it was under the Act of 
 Sederunt of 1839, which, except as regards accountants' reports, 
 made " the parties' procurators jointly " liable for the expense 
 of remits. Decree for a reporter's fee may be given in the 
 process, and the reporter may withhold his report, and retain 
 the vouchers and documents which have come into his hands 
 in the course of executing the remit, till he obtain payment 
 of his fees. Where one party has taken up a report, and paid 
 the whole fee, the other party cannot compel him to disclose 
 it, unless by paying his half of the fee. 
 
 Appendix, Rule 60. Sutherland v. Goalen, 1855, 17 
 
 Brown v. Goalen, 1827, 5 S. 514. D. 509. 
 
 Ballantyne v. Reddie, 1884, 22 
 S.L.R. 136. 
 
 13
 
 194 DEFENDED CAUSE. 
 
 (G) Sisting an Action. 
 
 465. If any reason exists why a case should not, at the 
 closing of Hie record, be sent to trial, or, if at any stage, circum- 
 stances arise which make it inexpedient to continue a litigation, 
 but the pursuer does not desire to abandon it, the Court may 
 in its discretion sist the action till the further orders of Court. 
 ]{ut an action should not, generally speaking, be sisted, if the 
 effect of doing so would be to give one party an unfair advan- 
 tage, as, for instance, to enable an illiquid debt to be 
 constituted; and an action cannot be competently sisted in 
 circumstances where a defender is entitled to move that it be 
 dismissed. Thus an action which has been served prematurely, 
 as, for instance, a claim for a debt not yet due, should Ik 1 
 dismissed, not sisted to await the due date, because there was 
 no relevant cause of action at the date the action was raised. 
 If, however, there was at the date of raising the action a 
 relevant cause of action, but it is inexpedient at the moment 
 to press it, then it may be sisted, as, for instance where there 
 is another net ion in dependence, founded upon the same facts, 
 and raising the same question of law, or where circumstances 
 have arisen since the action was raised which, according as 
 they may eventuate, may render the action unnecessary; or 
 where a party has become bankrupt, and his trustee requires 
 time to investigate the circumstances, before deciding whether 
 to sist himself as a party ; or where a document has been 
 founded on which requires to be stamped before it can be taken 
 cognisance of; or where it is necessary to await the occurrence 
 of some event, or the arrival of some date, or the issue of a 
 pending litigation; or generally, in any circumstances where, 
 whilst there are not grounds for dismissing the action, the 
 Court is of opinion that it ought not at the moment to be 
 prosecuted. 
 
 M'Ritchie v. Murray & Young, Smellie v. Thomson, 1868, 6 M. 
 
 1827, 5 S. 226. 1024. 
 
 Girdwood v. Hercules Insurance North British Railway Company 
 
 Company, 1833, 11 S. 351. v. N.B. Grain Storage Com- 
 
 Loudon v. Young, 1856, 18 D. pany, 1897, 24 R. 687. 
 
 856. Barr v. Queensfcrry Com- 
 
 Munro v. Macdonald's Execu- missioners, 1899, 1 F. 630. 
 
 tors, 1866, 4 M. 687. Paterson v. Paterson, 1899, 2 F. 
 
 81. 
 
 4G6. An action may be sisted on the motion of either party, 
 or by the Sheriff ex proprio motu. An interlocutor sisting an
 
 SISTING AN ACTION. L95 
 
 action is an appealable judgment, but an interlocutor refusing 
 to sist an action is not appealable without leave. 
 
 Appendix, s. 27, 28. 2 & 3 Geo. V. c. 28. Sch. I. 
 
 7 Ed. VII. c. 51, s. 8, 27, 28. 
 
 467. A sist may be recalled upon the motion of cither party, 
 but the recoil, like the sisting, is in the discretion of the Court. 
 While if stands, an order Bisting an action precludes any 9tep 
 of process, however formal, being taken. No interlocutor can 
 be pronounced till the sist has been recalled, and the process 
 resumes the character of a pending process. Rule 101 of the 
 Sheriff Courts Act, 1907, which describes an action which 
 has fallen asleep as one in which no interlocutor has been 
 pronounced for a year and a day, makes no exception as to a 
 sisted action. To keep the process alive therefore it will be a 
 wise precaution to have an interlocutor continuing a sist pro- 
 nounced within the year and day. 
 
 Appendix, Rule 101. 7 Ed. VII. c. 51. Sch. L. Rule 
 
 101. 
 
 (7) Remit to Small Belt Roll. 
 
 468. Any action, whether a summary cause or an ordinary 
 action, irrespective of its value, may of consent be disposed 
 of as a Small Debt action. But, of course, this applies only 
 to actions of a nature competent in the Small Debt Court, 
 that is to say, actions for payment, or for delivery, or of 
 multiplepoinding. An action of declarator, or for count and 
 reckoning, or for separation, or the like, not being competent 
 in the Small Debt Court, is not an action which can be remitted 
 to be disposed of under the Small Debt procedure. Where it 
 is competent, as regards the nature of the action, it is requisite 
 also that both parties consent. The Sheriff may, either upon 
 cause shown, or ex propria motu, remit a cause from his Small 
 Debt roll to be tried as an ordinary action ; but the converse 
 does not apply. The Sheriff may at his own hand send a case 
 up from the Small Debt to the Ordinary roll, but it is only of 
 consent of parties that he may bring a case down from the 
 Ordinary to the Small Debt roll. 
 
 Appendix, s. 48, Rule 61. 7 Ed. VII. c. 51, s. 48, Sch. 
 
 I., Rule 61. 
 
 469. Actions for delivery being now competent in the Small 
 Debt Court, and actions for the custody of children being now
 
 19G DEFENDED CAUSE. 
 
 competent in the Ordinary Court, it has been suggested that 
 the effect of the Sheriff Courts Act, l!)07, is that an action for 
 delivery of the person of a child is one of the actions which, 
 of consent of parties, may be remitted from the roll of ordinary 
 actions to the Small Debt roll, to be disposed of in the manner 
 provided by the Small Debt Act. But such an action cannot 
 be initiated in the Small Debt Court, because the Small Debt 
 Amendment Act of 1889, which made an action of delivery 
 competent in the Small Debt Court, applies only to " corporeal 
 " moveables," a term which includes things which can be 
 seen or handled, also cattle. But a human being- is not a 
 corporeal moveable, and, at any rate, a money value limit 
 cannot be put upon a human being. It is not therefore com- 
 petent, even of consent, to raise an action seeking delivery 
 of a child in the Small Debt Court, and, as it is not competent 
 to raise such an action 3 neither is it competent to remit it. 
 
 470. An action so remitted from the Ordinary to the Small 
 Debt roll becomes in every respect a Small Debt process. It 
 is disposed of in the Small Debt Court, the statutory direction 
 being that " the Sheriff shall remit the action to his Small 
 " Debt Court roll, and the whole powers and provisions of the 
 "Small Debt Acts shall become applicable to the cause." 
 Formerly the practice in some Courts was to dispose of the 
 cause in the Ordinary Court, although in the Small Debt 
 summary manner, for the Sheriff Court Act of 1853, which 
 first made it competent of consent to try an ordinary action 
 summarily, did not expressly direct that the action should 
 be remitted to the Small Debt roll, but only that it should be 
 tried in a summary way. The Sheriff Courts Act, 1907, leaves 
 no doubt on the subject. 
 
 Appendix, s. 48. 16 & 17 Vict. c. 80, s. 23. 
 
 7 Ed. VII. c. 51, s. 48. 
 
 471. If an ordinary action is desired to be thus disposed 
 of, the parties lodge a joint minute to that effect, whereupon 
 the case is at once put upon the Small Debt roll. It is there, 
 however, specially treated in the matter of expense, for the 
 fable of fees contains a special provision to meet cases remitted 
 to the Small Debt roll. The expenses up to the lodging of the 
 joint minute will, of course, be fixed in accordance with the 
 scale applicable to the action in its original character, but
 
 REMIT TO SMALL DEBT ROLL. L97 
 
 thereafter the agency fee is restricted to a guinea. The 
 expenses, which will be decerned for in the Small Debt Court, 
 may thus include (a) expenses on the ordinary scale, from the 
 raising of the action till the date of remit to the Small Debt 
 roll; (b) thereafter expenses on the Small Debt Court scale, 
 including an agency fee not exceeding a guinea. 
 
 Act of Sederunt, 10th April, 1908, Chap. VII., s. (4). 
 
 472. The statutory direction is that the Small Debt action. 
 when transferred, is to " proceed in all respects as if it had been 
 " originally raised in the Ordinary Court." If it had been it 
 would, of course (being under £50 value), have been treated as 
 a summary cause, and tried summarily. The direction 
 to remit the cause to the "Ordinary Court roll," together 
 with the direction that the after procedure is to include 
 appeal, seems to infer that the intention is that in cases where 
 important principles are involved, although the money interest 
 is small, the case is to have the full privileges and appeal 
 rights which are accorded to an ordinary action of its nature, 
 subject to the £50 value appeal restriction. On being remitted, 
 the action ceases to be a Small Debt action, and finishes its 
 course in the ordinary roll, unless of consent it is remitted 
 back to the Small Debt roll. If this is not done, the judgment 
 in the action is judgment in an ordinary action, so that there 
 is no appeal to the Justiciary Court, for that is appropriate 
 only to a Small Debt action, and the remitted cause has lost 
 that character. What the action gains by transfer is the right 
 to a formal proof, with recorded evidence, and a formal judg- 
 ment subject to review, and in exchange it parts with its 
 privilege of summary procedure and judgment, as in the Small 
 Debt Court, and also with its appeal to the Justiciary Court. 
 
 Appendix, s. 48, Rule 61. 7 Ed. VII. c. 51, s. 48 
 
 1 Vict. c. 41, s. 31. 
 
 473. There is no prescribed stage at which, nor time within 
 which, a case may be remitted either from the Ordinary to 
 the Small Debt roll, or from the Small Debt to the Ordinary 
 roll. It appears to be competent at any stage. In the case 
 of the ordinary action, the circumstances which make it appro- 
 priate for Small Debt procedure may not have emerged at 
 the initial stage of the case, but by the time the record is 
 closed they should have done so, and the appropriate time for
 
 198 DEFENDED CAUSE. 
 
 a remit to the Small Debt roll would appear to be at the closing 
 of the record. The power of transfer, however, is unrestricted. 
 In the converse case of remit from the Small Debt Court the 
 issue will be clear from the first, and, if the case is appropriate 
 for treatment as an ordinary action, it should be remitted at 
 the first calling, before any procedure is entered upon. In this 
 case also, however, the power of transfer is unrestricted, and 
 it is probably not incompetent, although obviously incon- 
 venient, to remit a Small Debt Court cause to the Ordinary 
 Court roll, at any time before judgment in it has been recorded 
 in the Small Debt Court book. 
 
 Appendix, s. 48, Rule 61. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 61. 
 
 (8) Order for Trial. 
 
 474. An action which is not removed to the Court of 
 
 Session, nor remitted to a referee, nor remitted to the Small 
 
 Debt roll, nor sent for jury trial, proceeds to trial before the 
 
 Sheriff, and, after the closing of the record, the Sheriff may 
 
 allow a proof. As already mentioned, that may be a proof 
 
 before answer, or a proof on the merits, according as the 
 
 preliminary pleas have, or have not, been disposed of. If the 
 
 action is an ordinary action, the interlocutor must formally 
 
 allow a proof, because that is a ground of appeal. If it is 
 
 a summary cause, the Acts 1907-1913 are not clear upon the 
 
 form of order. As " summary cause " was originally defined, 
 
 the contemplation of the statute obviously was that there 
 
 should be no interlocutory appeal, but an appeal only upon 
 
 the final judgment of the Sheriff-Substitute. In its altered 
 
 form, it is thought that this is still the intention, and that the 
 
 proper order is simply to fix a diet for the trial of the cause. 
 
 Appendix, s. 3 (i), 8, 27, 28, 7 Ed. VII. c 51, s. 27. 
 
 Rule 41. 
 
 17-3. Formerly some nice distinctions were recognised in 
 regard to the form of an order for proof. Thus, if the case 
 comprised only averments for the pursuer, denied by the 
 defender, the order allowed the pursuer a jiroof of his averments 
 and the defender a conjunct probation. Where the defender 
 made separate averments, the order allowed both parties a 
 proof of their averments, and pursuer a conjunct probation. If 
 defender admitted the pursuer's case, and set up in answer a 
 separate case, the order allowed the defender a proof, and
 
 ORDER FOR TRIAL. 199 
 
 the pursuer a conjunct probation. Sometimes the order \v;is 
 for proof habili modo, a somewhat meaning-less phrase which 
 had no real significance, although the use of it was supposed 
 to preserve a right to the parties to plead in the course of the 
 proof that certain facts could not be proved parole, despite 
 a general order for proof. In modern practice, unless the 
 proof is to be restricted, the simple order commonly adopted 
 is " allows a proof," which requires each party to lead evidence 
 in support of his own case, and in anticipation of his opponent's 
 case. 
 
 Richardson v. Fleming, 1867, 5 INI. 586. 
 
 476. In the absence of express direction to the contrary, 
 the pursuer leads at the proof. Sometimes the defender is 
 appointed to lead. But this is a matter of convenience, and 
 does not necessarily infer that the onus of proof rests with the 
 defender. 
 
 Gibson v. Adams, 1875, 3 R. 144. 
 
 477. If an open proof is not allowed, then in the interlocutor 
 allowing proof, whether it is in the general form used in a 
 summary cause, or in the particular form used in an ordinary 
 action, the particular restriction of the inquiry should be set 
 forth, whether the restriction is as reg*ards the sub j eel-matter 
 or the form of the proof. Thus, where a pursuer makes 
 averments which it is not competent to prove parole, the order 
 should specifically allow a proof by writ or oath of the defender. 
 The date and place for taking the proof are commonly set forth 
 in the interlocutor allowing proof, but these may be the subject 
 of a subsequent interlocutor, and an interlocutor allowing 
 proof is appealable, although no time and place for taking it 
 have been fixed; but an interlocutor merely fixing a time and 
 place at which an already allowed proof shall proceed is not 
 appealable. 
 
 Appendix, s. 27, 28. 7 Ed. VII. c. 51, s. 27 (d). 
 
 478. If, at the diet of proof, one party only appears, he 
 does not require to lead any evidence (unless in a consistorial 
 action in which pursuer's averments must bo substantiated 
 whether an opposing party appear or not) ; for no person is 
 required to proceed with his proof in the absence of a contra- 
 dictor. The party not appearing is held as confessed, and the
 
 200 DEFENDED CAUSE. 
 
 party appearing may crave decree by default. If neither 
 
 party appear, the action is dismissed. 
 
 Appendix, s. 5 (2), Rules 23, 7 Ed. VII. c. 51, Sch. I., Rule 
 
 (Proviso), 56. 56. 
 
 2 & 3 Geo. V. c. 28, Sch. II. 
 
 (9) Renouncing Probation. 
 
 479. An order for proof may he rendered unnecessary, or 
 
 the scope of the proof may he restricted, by both or either of 
 
 the parties generally or particularly renouncing- probation at 
 
 the closing- of the record. If the facta are not in dispute, and 
 
 both parties renounce probation, the Sheriff may hear parties 
 
 at the diet for closing- the record, or he may fix a later diet for 
 
 hearing-. If, however, only one party renounces probation, 
 
 the case will not then be debated on the merits, for the facts 
 
 are not yet agreed, and so an order for proof is pronounced. 
 
 The form of the order in that case may, strictly speaking, be 
 
 to allow the party who has not renounced probation a proof 
 
 (pursuer or defender, as the case may be), but, as the party 
 
 who does renounce must sign a minute to that effect on the 
 
 interlocutor sheet itself, the scope of the proof is obvious, and 
 
 it will suffice to make the usual general order allowing a proof. 
 
 A party who renounces probation is not afterwards permitted 
 
 to change his mind. 
 
 Appendix, Rules 58, 59. Carsewell & Son v. Einlay, 1887, 
 
 7 Ed. VII. c. 51, Sch. I., Rules 14 R. 903. 
 
 58, 59. 
 
 480. Under the Sheriff Courts Acts, 1907-1913, the Sheriff 
 is not tied down, as he was under the earlier Acts, either to 
 require proof to be renounced, or to order proof, at the diet 
 for closing the record, for proof is only to be ordered if it is 
 necessary, and the fact that proof is not renounced does not 
 necessarily infer that proof is necessary. It may, for instance, 
 be more appropriate to make a remit. It is competent, and 
 often most useful, to send a case to the debate roll in the first 
 place, even wliere no preliminary pleas are stated. Proof 
 may be renounced at any stage, but a party who delays renounc- 
 ing, and so leads his opponent into expense preparing for 
 proof, runs the risk of that circumstance being remembered 
 against him in the matter of expenses, whatever the ultimate 
 decision may be. 
 
 Appendix, Rules 58, 59. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 59.
 
 CHAPTER IX. 
 
 TRIAL OF THE CAUSE. 
 
 1. Inspection by Court. 
 
 481. In some actions, especially those concerning heritable 
 property, and the execution of works, it is convenient for the 
 judge, before hearing- evidence, to see the locus. If this is 
 considered desirable, the order fixing a time and place for t In- 
 trial should also appoint parties or their agents to meet with 
 the Sheriff on the ground. The proper time is before the 
 commencement of the proof, for the object of an inspection is 
 to enable the Sheriff to follow the evidence led, not for the 
 purpose of criticising evidence after it has been led. A visit 
 to the locus should always be in presence of parties' agents. 
 
 Hattie v. Leitch, 1889, 5 S.C.R. 333. 
 
 2. Inspection by Parties. 
 
 482. In like manner, not for the purpose of superseding 
 proof, but for its better understanding, each party is entitled 
 to reasonable facility from the other for the inspection, 
 personally, or by others on his behalf, of buildings, works, 
 material, &c, which are the subject of an action. If reason- 
 able access is not voluntarily afforded, the Court imay order a 
 party to afford it, but the identity of the parties who are to 
 be sent to inspect must be disclosed. So also, a party alleging 
 personal injury, and suing for damages in respect thereof, is 
 bound to submit himself to medical examination on behalf of 
 the defender, and, if necessary, the Sheriff will make an order 
 for this purpose, even before the record is closed, if such 
 medical examination is reasonably necessary to enable a 
 defender to state his defence. 
 
 Junner v. North British Railway Smyth v. Gow, 1895, 2 S.L.T. 
 
 Company, 1877, 4 R. 686. 473. 
 
 Christie v. Munro, 1885, 23 Clippena Oil Company v. Edin- 
 
 S.L.R. 267. burgh Water Trustees, 1904, 
 
 Bell v. Hamilton's Trustees, 12 S.L.T. 40. 
 
 1889, 16 R. 1001.
 
 202 TRIAL OF THE CAT T SE. 
 
 3. Assessors. 
 
 483. In maritime causes the Court, or either party, may 
 require a skilled assessor to sit with the Sheriff to hear evidence. 
 This is regulated by the Nautical Assessors Act, 1894, and 
 relative Act of Sederunt. Before the appointment of an 
 assessor is made upon the motion of one party, the other party 
 has ri^lit to be heard, and to object to the suitability of the 
 person proposed. The Court has a discretion to refuse to 
 nominate an assessor who is objected to, but in practice objec- 
 tion is seldom made to the proposed nominee of the Sheriff. 
 The assessor is selected from a list approved by the Sheriff, 
 and if one nominated is objected to, the Sheriff may nominate 
 another. If all on the list are successfully objected to, then 
 the motion for an assessor would seem to fall, for there is no 
 provision for a nomination pro Jtac vice, either by the Sheriff- 
 Substitute or the Sheriff. The assessors on the list hold office 
 for three years, and are eligible for re-nomination. The 
 party moving for an assessor is required to consign the costs 
 involved. If an assessor is summoned ex proprio motu by 
 the Court, the pursuer of the action makes the consignation. 
 
 57 & 58 Vict c 40 Act of Sederunt, 8th Dec, 1894, 
 
 s. 9, 10. 
 
 484. There is no official qualification for a nautical assessor 
 beyond the general requirement that he must be a person " of 
 " nautical skill and experience." Neither the statute, nor 
 the relative Act of Sederunt, gives any indication of what kind 
 of objection to an assessor is competent. But it must be an 
 objection having relation to the particular subject of the action 
 — as, for instance, in a case involving questions of navigation 
 only, it might probably reasonably be objected that the 
 proposed assessor, although an eminent marine engineer, had 
 no experience in navigation ; or, in a case concerning a break- 
 down of engines, that although he was an experienced practical 
 navigator, he had no experience of machinery ; or, in a case 
 concerning stowage of cargo that, although an eminent naval 
 architect, he had no practical experience of the stowing of 
 cargo. 
 
 57 & 58 Vict. c. 40, s. 2. 
 
 485. The scope of the Nautical Assessors Act is very wide.
 
 ASSESSORS. 203 
 
 It applies not only to notions "arising- out of or relating 1" 
 "collisions at sea/' but also to actions relating- to Balvage and 
 towage, "or any other maritime matter." This broad defini- 
 tion might cover not only maritime actions strictly so called, 
 but many actions, arising- upon contract, relating- to the build- 
 ing, employment, or insurance of ships. In practice, however, 
 in most Sheriff Courts, a nautical assessor is asked for only in 
 collision and salvage cases, and the requirement that the 
 expense of having' an assessor must be provided for, tends to 
 make applications for assessors very few, relative to the number 
 of maritime actions entertained in the Sheriff Courts. 
 57 & 58 Vict. c. 40, s. 2. 
 
 48G. The Employers' Liability Act of 1880 also sanctions 
 the Court calling in an assessor in cases laid under that 
 statute, but the qualification for an assessor is not defined, 
 and the Sheriff is not restricted to an official list of assessors. 
 He may select for himself " an assessor duly qualified." 
 43 & 44 Vict. c. 42, s. 6 (2). 
 
 487. Under the Patents, Designs, and Trade Marks Act 
 of 1883, in any action for infringement of patent rights, it is 
 competent for the Court ex proprio motu to call in an assessor. 
 The Court is bound to do so on the motion of either party. 
 The qualification for an assessor is not defined, beyond that 
 lie must be a person "with skilled knowledge," and the 
 selection rests with the Sheriff. 
 
 46 & 47 Vict, c. 57, s. 28, 107. 
 
 488. Under the Workmen's Compensation Act, 190G, a 
 medical assessor may be called in. He is selected from an 
 official list of medical referees. Such an assessor is frequently, 
 and most usefully, called in cases where review of compensa- 
 tion is craved. The single question in such cases generally is 
 whether the workman has recovered from the effects of his 
 accident, and upon this the medical evidence is often of a 
 conflicting character. It is competent for the Sheriff ex proprio 
 motu to call in an assessor. 
 
 6 Ed. VII. c. 58, Sch. II., s. 5. 
 
 489. When it is competent to have an assessor in an
 
 204 TEIAL OF THE CAUSE. 
 
 ordinary action, or in a summary cause, the appropriate time 
 for moving for an assessor is at tlie date of ordering proof, 
 or of fixing a diet for the trial of the cause ; but the motion 
 may be made later. It should in all cases be made a reasonable 
 time before the diet of proof, and in maritime cases at least 
 eight days before the date fixed for the proof, for the Sheriff 
 has to make a nomination, and the Sheriff-clerk has to intimate 
 it eight days before the proof, and there may be objections to 
 the assessor selected. It is not usual for an assessor to be 
 called in after proof has been led, but the Nautical Assessors 
 Act seems to contemplate that, in a maritime cause, an assessor 
 may be called in at any stage. A Court of Appeal may have 
 an assessor, although the judge of first instance had not. 
 
 Act of Sederunt, 8th Dec, 1894, s. 8. 
 
 4. Witnesses. 
 
 490. Every citizen is bound to assist constituted judicial 
 authority in the administration of justice, and so every person 
 who has knowledge of the facts and circumstances upon which 
 Court proceedings depend is a competent witness, including the 
 parties in the cause, and their agents or servants. If a party 
 adduces his own law agent as a witness, he cannot object 
 to pertinent cross-examination on the ground of confidentiality. 
 It is not necessary that a witness should be cited to attend. He 
 may attend voluntarily. Citation is only a means of enforcing 
 the attendance of a witness. It is not the citation which makes 
 him a competent witness, and as regards his right to 
 remuneration, it makes no difference whether he is cited or 
 attends voluntarily. Any person who is in presence of the 
 Court may be called to give evidence, whether he has been 
 formally cited, or is there as a party in the cause, or as an 
 outsider. How he comes to be present is of no consequence. 
 What alone is of consequence is that he has knowledge of facts 
 which, in the interests of justice, the Court desires to be 
 informed upon. If he has such knowledge he is a competent 
 witness. 
 
 5 & 6 Will. IV. c. 62, s. 13. Watson v. Livingstone, 1902, 5 
 
 15 Vict. c. 27, s. 1. F. 171. 
 
 491. Formerly there were some personal disabilities which
 
 WITNESSES. 205 
 
 precluded a witness from giving testimony. Consanguinity, 
 interest, agency, and other disabilities hindered the dispensing 
 of justice by restricting the scope of available testimony; as 
 the preamble of the Evidence Act of 1840 expressed it, " the 
 t{ law of evidence in Scotland has in certain respects been found 
 " inconvenient and inconsistent with the ends of justice." That 
 statute commenced the relaxation of the stringency of the rules 
 of evidence, by declaring that it should neither be a ground 
 for a witness declining to give evidence, nor an objection to 
 the evidence itself, that a witness was a parent, or child, or 
 collateral relation, of any party; nor should it be imperative 
 to reject the testimony of a witness who had been present in 
 Court during the proceedings. The Evidence Acts of 1852 and 
 1853 removed the disability which attached to parties who had 
 been convicted of crime, to agents, to husbands and wives, and 
 generally to interested parties, and in present-day practice 
 practically no sane person is disqualified for giving testimony 
 in a Court of law. No competent evidence is excluded, but all 
 evidence is weighed, and any witness may be examined " on 
 " any point tending to affect his credibility." 
 
 3 & 4 Vict. c. 59. Lord Advocate v. Reid, 1883, 2 
 
 15 Vict. c. 27. Coup. 415. 
 
 16 Vict. c. 20. 
 
 492. Children, however young, are competent witnesses, if 
 they are able to answer intelligently, but children under twelve 
 are not necessarily sworn. They may be merely admonished to 
 speak the truth. There is no age limit, by statute or at common 
 law, for a competent witness. No relationship to a party in 
 the cause now disqualifies a witness. Nor is the character of 
 a witness a disqualification for giving evidence. All these are 
 elements for consideration in weighing the evidence given, but 
 they do not warrant the exclusion of a witness. An insane 
 person, of course, is not a competent witness, but it is not a 
 good objection to a witness that he has at some time been 
 an inmate of a lunatic asylum. A deaf and dumb person 
 may competently give testimony, through a sworn interpreter, 
 or by written question and answer. 
 
 Lord Advocate v. Montgomery, Lord Advocate r. M'Kenna, 
 
 1855, 2 Irv. 222. 1869, 1 Coup. 244. 
 
 Lord Advocate v. O'Neil & Lord Advocate v. Howieson, 
 
 Gollan, 1858, 3 Irv. 93. 1871, 2 Coup. 153. 
 
 Lord Advocate v. Sheriff & Lord Advocate v. Stott, 1894, 1 
 
 Mitchell, 1866, 5 Irv. 226. Adam, 386.
 
 20G TRIAL OF THE CAUSE. 
 
 5. Precognition. 
 
 493. The same consideration of the citizen-duty of aiding 
 the course of justice, which makes it competent to require a 
 person having knowledge of facts to attend and depone to them 
 in a Court of law, makes it also his duly to afford to the parties 
 in the cause information as to what he is prepared to depone 
 to, or, in technical Language, it is the duty of a prospective 
 witness 1o permit himself to bo precognosced. In criminal 
 practice, attendance for precognition is compulsory, and may 
 be enforced at the instance of the procurator-fiscal, but there 
 is no machinery in civil practice to compel a prospective witness 
 to attend for precognition. If a witness has unreasonably 
 refused to attend for precognition, probably the Court might 
 refuse him a witness fee, but that is all that can be done. The 
 Court will not make any order even against a party in the 
 cause, far less against an outsider, to compel witnesses to 
 submit to precognition, or to grant facilities for precognition of 
 witnesses. 
 
 Henderson v. Patrick Thomson, Ltd. (1910), 1911, S.C. 246. 
 
 494. In Scotland precognitions in civil causes are not taken 
 on oath, and a witness cannot be forced to sign his precog- 
 nition. He may do so voluntarily, as skilled witnesses often 
 do, but, even if it has been signed, it is not competent to put 
 to a witness in the box a statement made by him in precogni- 
 tion, in order to discredit the statement made by him in the 
 witness-box. A precognition cannot be put in as evidence if 
 the witness has died before the diet of proof, nor can it be used 
 for any process purpose. It is a private document, for the 
 convenience of agents and counsel, and is not in any sense 
 documentary evidence. 
 
 Emslie v. Alexander, 1862, 1 M. Stevenson v. Stevenson, 1893, 31 
 
 209. S.L.R. 129. 
 
 Graham r. Western Bank, 1865, Cook v. M'Neil, 1906, 8 F. (J.) 
 
 3 M. 617. 57. 
 
 G. Attestation. 
 
 495. A witness cannot competently give evidence unless he 
 has made oath or affirmation that he will speak the truth. 
 Formerly religious belief was regarded as an element in the
 
 ATTESTATION. 207 
 
 validity of an oath, and a witness might be asked if he believed 
 in the existence of a God and (lie obligation of an oath. If he 
 replied in the negative, he was regarded as an incompetent 
 witness, because testimony given upon oath is alone competent 
 evidence, and, if a witness did not recognise the binding nature 
 of an oath, he could not, in a manner binding upon his 
 conscience, swear to speak the truth. If, however, the witness 
 answered that lie did regard the oath as binding upon his 
 conscience, investigation into religious belief was not pursued 
 further. Of course, a person who did not really recognise the 
 obligation of an oath had, in the general case, very little 
 scruple about saying that he did, if it suited his purpose at 
 the moment, and evidence was often received which was, 
 strictly speaking, not valid. On the other hand, valuable 
 evidence was often lost, owing to over-scrupulosity ami 
 tenderness of conscience. This difficulty was removed by a 
 statute of 1888, which permits a witness, who has conscientious 
 objection to taking an oath, to make an affirmation. 
 51 & 52 Vict. c. 46. 
 
 496. The usual form of oath which in Scotland is 
 administered to a witness is, " I swear by Almighty God, and 
 " as I shall answer to God at the great day of judgment, that 
 ''I shall tell the truth, the whole truth, and nothing but the 
 " truth " ; and the form of affirmation is, " I do solemnly, 
 " sincerely, and truly declare and affirm that I shall tell the 
 "truth, the whole truth, and nothing but the truth." Every 
 witness in a Court of law in Scotland, except very young- 
 persons, must either swear or affirm in the prescribed form, 
 and his refusal to do either is punishable as contempt of Court. 
 The Court of its own initiative takes no cognisance of the 
 nationality or special faith of any witness; but if it is brought 
 to the notice of the Court that some further formality is 
 necessary to make an oath or affirmation binding upon the 
 conscience of the witness, or where the witness himself desires 
 to add some additional ceremony peculiar to his faith or 
 country, the Court may order or permit its observance. Thus, 
 if a witness desires to have his hand on the Bible, or Common 
 Prayer-book containing the Gospels, or to kiss it; or if a 
 Jew is not sure of himself as regards truth telling unless he is 
 sworn on the Books of Moses, or has his hat on his head, or 
 his staff in his hand; or if a Mohammedan feels that in order
 
 20S TRIAL OF THE CAUSE. 
 
 to be truthful he nmsl he sworn on the Koran ; or a China- 
 man that his oath or affirmation is wanting in dramatic effect 
 unless, according 1 to the custom of his country, he holds a 
 saucer in his hand and breaks it at the conclusion of the oath, 
 such ceremonies will not be objected to, so long as the witness 
 at the same time makes the oath or affirmation required by the 
 law of Scotland. 
 
 1 & 2 Vict. c. 105. M'Laughlin v. Douglas, 1863, 4 
 
 28 & 29 Vict. c. 9. Irv. 273. 
 
 51 & 52 Vict. c. 46. Anderson v. M'Farlane, 1899, 1 
 
 Bonnar v. Simpson, &c, 1836, 1 F. (J.) 36. 
 Svvin. 39. 
 
 7. Citation of "Witnesses. 
 
 497. Whilst the evidence of any person who is present 
 before the Court may be accepted for the information of the 
 Court, no person is bound to attend to give evidence for a 
 party unless he has been formally cited. Formerly a witness 
 could only be called under warrant of the Sheriff to 
 give evidence in his sheriffdom. If required to attend 
 in any other sheriffdom, a special warrant, in the 
 form of letters of supplement, required to be obtained 
 from the Court of Session. This most inconvenient restriction 
 was abrogated by the Sheriff Court Act of 1838, which made 
 the warrant of any Sheriff operative in any sheriffdom, pro- 
 vided it had been endorsed by the Sheriff-clerk of the jurisdic- 
 tion where it was executed. This practice existed till 1907, 
 as regards citation of witnesses, for, although the Sheriff Court 
 Act of 1876 dispensed with indorsation as regards warrants 
 for service, the enactment of 1876 did not extend to warrants 
 of citation. The Sheriff Courts Act, 1907, dispenses with 
 indorsation as regards warrants for citation. 
 
 Appendix, Rule 10. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 1 & 2 Vict. c. 119, s. 24. 10. 
 
 39 & 40 Vict. c. 70, s. 12 (1). 
 
 498. There is a prevalent idea that the Sheriff Courts Act, 
 1907, has dispensed with indorsation as a requisite in every 
 kind of warrant, but the statute does not do so. Rule 10 deals 
 only with warrants for two purposes — (a) citation ; (b) arrest- 
 ment on the dependence. The statute makes no alteration 
 otherwise on the previously existing law and practice, so that, 
 when diligence has to be done in execution of a decree, as, for
 
 CITATION OF WITNESSES. 
 
 instance, poinding-, the warrant must still bo endorsed by the 
 Sheriff-clerk of the district where the warrant is to be executed. 
 There is an obvious difference between a warrant authorising 
 citation, or arrestment on the dependence, and a warrant 
 authorising such diligence as poinding- and sale, and indorsa- 
 tion (although it is usually a mere formality) is still suppo-cd 
 to afford a certain safeguard against error, or wrongous use of 
 diligence. 
 
 Appendix, Rule 10. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 10. 
 
 499. A certified copy of the interlocutor allowing proof, or 
 fixing a trial diet, or a diet for examination of witnesses or 
 havers, whether before the Court or before a Commissioner, is 
 sufficient warrant for citing witnesses and havers. Citation 
 must be made upon an inducire of not less than forty-eight 
 hours; but although that is the minimum, it is not to be 
 inferred that it is in all cases sufficient. A witness should get 
 reasonable notice, according to his locality or station in life. 
 Failure to obey a citation subjects the defaulting witness to a 
 penalty not exceeding forty shillings, for which the Sheriff 
 may decern against the witness in favour of the party who 
 cited him. The Sheriff Courts Act, 1907, introduced a pro- 
 vision new in Scotch practice, that a witness may demand his 
 travelling expenses. If he has done so, and has not been paid, 
 he is not bound to answer the citation, nor is he liable in the 
 penalty for non-attendance. The Act does not expressly 
 direct that a witness at a distance from the seat of the Court 
 is to be tendered his travelling expenses along with the citation, 
 and a witness can only excuse himself for non-attendance if 
 he have demanded his expenses. If, however, a witness is 
 cited on a short inducise, it will be wise, if it is desired to 
 ensure his attendance, to tender the travelling expenses. If 
 the citation is postal, the travelling expenses should be 
 enclosed in the letter. If the citation is by officer, he should 
 be authorised to pay the travelling expenses if demanded. 
 This provision of the new Act assimilates the Scotch practice 
 as to citing witnesses to that of England. 
 
 Appendix, Rule 71. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 71. 
 
 500. The form of citation of witnesses and havers, as 
 contained in the Sheriff Courts Act, 1907, requires that the 
 14
 
 210 TRIAL OF THE CAUSE. 
 
 witness be notified of t lie names of the pursuer and defender 
 in the action in which he is called to give evidence, or produce 
 documents, and of the place and date where his attendance is 
 required. The citation also specifies the penalty for non- 
 attendance, and is dated and signed either by an officer, or by 
 the law agent of the party citing the witness. In neither 
 case is a witness now necessary, in which respect execution of 
 citation of a witness differs from that of a party, which, if 
 effected by an officer, must be attested by at least one witness. 
 The citation of a witness or haver may be made by post, or 
 may be served by an officer, in the same manner as a citation 
 of a party, but unless the Sheriff is of opinion that citation by 
 an officer was justified, only postal citation fees will be allowed 
 as party and party costs. It is not competent to cite a witness 
 edictally, and it would be obviously futile to do so. An officer 
 either of the sheriffdom whence came the warrant, or of the 
 sheriffdom where it is to be executed, may cite a witness. 
 
 Appendix, Rules 10, 72, Forms 7 Ed. VII. c. 51, Sch. I., Rule 
 
 F, G. 72. 
 
 45 & 46 Vict. c. 77, s. 6. 
 
 501. The phraseology of the Sheriff Courts Act, 1907, 
 preserves the distinction which has always been recognised 
 between witnesses and havers. The " haver" is a witness, in 
 the sense that he is cited to attend in the same manner as a 
 witness, and it frequently happens that a party is both a witness 
 and a haver. Strictly speaking, however, a haver is not a 
 witness, and cannot be examined as a witness in regard to the 
 facts on the record. He is called only to produce books or 
 documents, the term " haver " in its strict sense applying to a 
 person who may not be qualified to give evidence, but who is 
 in possession of books or documents which a party desires to 
 have put in evidence. The rules as to citation apply both to 
 witnesses and havers, and apply to appearance before a 
 Commissioner, as well as before the Court itself. 
 
 502. A witness or haver who fails to obey a citation calling 
 upon him to attend in a civil cause is not only liable in a 
 monetary penalty, but is liable also to arrest under letters of 
 second diligence. The ground for such a warrant, however, 
 is that the witness has been duly cited, upon sufficient indueioe 
 to reasonably permit of his attending-. Where a witness has
 
 CITATION OF WITNESS KS. 211 
 
 not, therefore, been cited personally, it may not be prudent, 
 although it is competent, to apply at once for second diligence. 
 The diet should, if possible, rather be adjourned, and the 
 attempl made to personally cite the witness. The failure of 
 ;i duly cited witness to obey the citation is a form of contempl 
 of Court, and letters of second diligence may be granted 
 authorising officers of Court to apprehend the witness and bring 
 him before the Court for examination, or to commit him bo 
 prison till he find caution to appear when called upon. The 
 expense of this procedure falls upon the witness, and may be 
 decerned for in favour of the party who requires the attendance 
 of the witness. 
 
 Appendix, Rules 71-73. Steedman v. Steedman, 1886, 23 
 
 7 Ed. Vll. c. 51, Sch. I., Rules S.L.R. 856 
 
 71-73. 
 
 8. Payment of Witnesses. 
 
 503. As already mentioned, a witness, before obeying- a 
 citation, is entitled to have his travelling- expenses prepaid. 
 But he is not entitled to refuse to attend, or to refuse to give his 
 evidence, unless his fee also is prepaid. His fee is a debt 
 tor which the party who cites the witness is liable, but the 
 debt has not been incurred till the witness has attended for 
 examination. When an agent cites a witness he, as well as 
 his client, is personally liable for the witness's fee. When the 
 citation is by officer, the party alone is liable. Fees payable 
 to witnesses vary according to the standing of the witness. 
 They are fixed by the Auditor of Court, subject to revision by 
 the Sheriff upon objections to the Auditor's report. 
 
 Appendix, Rules 71-73. 100. Act of Sederunt, 10th April, 
 
 7 Ed. VII. c. 51, Sch. I., Rules 1908, Chap. X. 
 
 71, 72, and 100. Fraser v. Stronach, 1885, 23 
 
 S.L.R. 76. 
 
 9. Documentary Evidence. 
 
 504. Documents which are founded on in the pleadings 
 ought to be produced not later than the closing of the record, 
 whether the other party calls for them or not. For their 
 recovery, if not produced, or for the recovery of other docu- 
 ments which he desires to put in evidence to support his case, 
 any party may apply for a diligence. An interlocutor of the 
 Sheriff-Substitute approving of a specification, and granting
 
 212 TRIAL OF THE CAUSE. 
 
 diligence for recovery of documents, is not appealable without 
 
 leave. 
 
 Appendix, Rules 47, 48, 68. Baikie v. Doull, 1908, 24 S.C.R. 
 
 7 Ed. VII. c. 51, Sch. I., Rules 211. 
 
 47, 48, 68. Dick v. BLairgowrie Town 
 
 Stewart r. Kennedy, 1890, 17 R. Council, 1910, 27 S.C.R. 243. 
 
 755. 
 
 505. Except to the limited extent of enforcing production of 
 documents founded on in the pleadings, diligence to recover 
 documents will not be granted till the record has been closed, 
 and proof allowed, for, until then, the relevancy or otherwise 
 of documents called for cannot be determined, and the Court 
 will grant diligence to recover only documents which from 
 their description appear to have a relevant bearing on the 
 issues raised in the cause. The Sheriff has power to order 
 production of documents at any stage of the cause, but the 
 parties should move for recovery of the documents they want, a 
 reasonable length of time before the date fixed for proof. 
 
 Appendix, Rules 47, 48. 68. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 47, 48, 68. 
 
 500. A specification will not be allowed unless there 
 is averment on record to warrant it, and even when there is 
 sufficient averment the approval by the Court of a specification 
 of documents does not infer that every document mentioned 
 in it is relevant to put in evidence. As Rule 62 of the 1907 
 Act is expressed, such a reading is perhaps possible. But the 
 Sheriff cannot determine the relevancy of the productions till 
 he has seen them, and the specification is usually general in its 
 terms. A call for correspondence, for instance, may lead to 
 the recovery of letters, some of which may be relevant 
 evidence and some not, and some of which may be confidential. 
 The rule, as interpreted in practice, means that diligence to 
 recover documents is to be refused only if the documents 
 described in the specification are beyond the scope of the case 
 laid on record, and so quite clearly cannot be relevant to put 
 in evidence. Under a general specification, the Commissioner 
 should receive all documents except such as are clearly 
 irrelevant, or obviously protected on the ground of confi- 
 dentiality, leaving the question of the relevancy or confi- 
 dentiality of individual documents to be determined by the 
 Sheriff when the report of the Commission is put before him,
 
 DOCUMENTARY EVIDENCE. 213 
 
 and the productions recovered are tendered as proof in the 
 cause. 
 
 Appendix, Rule 62. Murphy v. Clyde Trust, 1902, 4 
 
 7 Ed. VII. c. 51, Sch. I., Rule F. 653. 
 
 62. Sleigh v. Glasgow and Transvaal 
 
 Livingstone v. Dinwoodie, 1060, Options, Limited, 1903, 5 F. 
 
 22 D. 1333. 332. 
 
 Duke of Hamilton's Trustees v. 
 
 Woodside Coal Co., 1897, 24 
 
 R. 294. 
 
 507. In very special circumstances, the Sheriff himself may 
 preside at a diet for the examination of havers; but the 
 ordinary practice is that documents are recovered hy a 
 Commissioner appointed by the Court to recover the produc- 
 tions set forth in a specification approved by the Court. The 
 rules and practice relating to the citation of and the attendance 
 of witnesses before the Court itself, are applicable also to 
 proceedings before a Commissioner. The citation of a haver 
 should specify clearly what he is called upon to produce, and 
 the Commissioner should receive all productions which 
 apparently fall within the approved specification. If 
 documents are tendered which the specification clearly does 
 not cover, the Commissioner may reject them, but if there is 
 room for dubiety as to whether they are covered by the 
 specification, the safer course is to receive them, subject to 
 objection, and to report them separately to the Court for 
 derision upon their relevancy. 
 
 Appendix, Rule 62. Blaikie r. Duncan, 1857, 19 D. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 983. 
 
 62. 
 
 508. The Sheriff Courts Acts give no direction as to pro- 
 cedure before a Commissioner, when a haver objects to produce 
 documents in his possession, on the ground of confidentiality 
 or otherwise. Probably no special direction was necessary, 
 for the Commissioner has no power to enforce production of 
 documents from an unwilling haver. He can only report 
 their non-production, and the reason assigned, leaving the 
 Sheriff to deal with the matter. The haver may he cited i S 
 a witness at the diet of proof, and called upon to produce. 
 If he there adhere to his objection, the Sheriff may repel or 
 sustain it, noting his decision on the notes of the evidence 
 If the objection is repelled, the haver must make the produc- 
 tion called for, unless there and then, in open Court, he craves
 
 214 TRIAL OF THE CAUSE. 
 
 and obtains leave to appeal the question whether he is bound 
 to produce to the Sheriff, in which event the proof, although 
 it may proceed upon other points despite this incidental appeal, 
 will require to he adjourned to a future date, till the decision 
 of the Sheriff upon the objection to making production has 
 been obtained. The Sheriff's decision is for the time being 
 final, and upon it the proof may be closed ; but if appeal be 
 competent otherwise, and the case is subjected to review, the 
 decision of the Sheriff-Substitute upon the question of the 
 haver's objection to produce, and the Sheriff's interlocutor 
 disposing of the incidental appeal to him will, of course, be 
 amongst the prior interlocutors which are also brought under 
 review when an appeal is taken against the final judgment. 
 
 Appendix, s. 29, Rules 76, 77. Stewart & Co. v. Bin-ell, 1897, 5 
 
 7 Ed. VII. c. 51, s. 29, Sch. I., S.L.T. 226. 
 
 Rules 76, 77. 
 
 509. Objections to documents themselves, as, for instance, 
 want of requisite stamp, or non-attestation, or the like, are 
 not disposed of by the Commissioner, although, when his 
 attention is directed to them, it is convenient that he make 
 reference to such objections in his report. The productions, 
 however, are not put in evidence in the cause merely by being 
 produced before the Commissioner. They are only recovered 
 with the view of afterwards being tendered as evidence, and the 
 Commissioner may refuse to receive them, only if it is so clear 
 as to be beyond question, that they can never be competently 
 produced. The execution of the commission is reported by the 
 Commissioner to the Court, but the report and productions are 
 only put in evidence by leave of the Court, and if the pro- 
 ductions are allowed as relevant. When the party who has 
 recovered the documents offers to put them in as evidence, the 
 question of admissibility of all or any of the documents may 
 be raised, and if raised should be decided by the Court, before 
 the productions are entered in the official inventory of process, 
 or are allowed to be marked as productions. 
 
 Livingstone v. Dinwoodie, 1860, Sleigh v. Glasgow and Trans - 
 
 22 D. 1333. vaal Options, Limited, 1903, 5 
 
 M'Alister v. Brown, 1870, 8 F. 332. 
 
 S.L.R. 502. 
 
 510. If a document founded on is not sufficiently stamped, 
 it must be stamped before it can be looked at by the Court,
 
 DOCUMENTARY EVIDENCE. 215 
 
 and if the party tendering the document desires time to 
 consider whether he will procure it stamped, the course is to 
 sist the action for a reasonable time. If the document is 
 capable of being stamped after execution, the amount of 
 stamp duty and penalty may be consigned with tlie Sheriff- 
 clerk, and the document may then be received in evidence. 
 The question of ultimate liability for the expense of procuring 
 the deed stamped is not determined at that stage, but is dealt 
 with as part of the question of expenses. The consignation 
 meantime falls to be made by the party founding on the 
 document. 
 
 33 & 34 Vict. c. 97, s. 16. M'Douall v. Caird, 1870, 8 M. 
 
 54 & 55 Vict. c. 39. s. 14 (4). 1012. 
 
 Neil v. Leslie, 1867, 5 M. 634. 
 
 511. All the signatories to a deed are to blame if it is not 
 duly stamped. In the case of a bilateral deed, therefore, the 
 party who founds on it, and so has meantime to provide the 
 expense of stamping it, does not, although he may be success- 
 ful in the litigation, recover from the other party this expense 
 in full, but only half of it; and he does not recover any part 
 of the stamping expense, unless the document founded on was 
 the ground of success, or the other party had made use of the 
 document. 
 
 512. Under the Stamp Act of 1891 it is pars judicis to take 
 notice of any omission or insufficiency of stamp, whether the 
 document is objected to or not, but the Court will not require 
 a document to be stamped if the necessity for a stamp, or the 
 amount of it, is dubious. " This is not a provision compelling 
 "judges to raise test cases or try doubtful questions regarding 
 " the stamping of instruments. I think that they are only 
 "bound to intervene to protect the revenue, where there is an 
 " undoubted case of insufficient stamping, or an attempted 
 " evasion of the Stamp Acts." 
 
 54 & 55 Vict. c. 39, s. 14. O'Brien v. O'Brien, 1910, 26 
 
 Francesco r. De Meo, 1907, 15 S.C.R. 268. 
 
 S.L.T. 387 (per Lord Ard- 
 
 wall). 
 
 513. Documents which are not themselves probative must 
 be proved by the party founding upon them ; but cer- 
 tain documents may be put in evidence without being
 
 21G TRIAL OF THE CAUSE. 
 
 produced or spoken to by a witness. Under the Documentary 
 Evidence Act of 1SG8, Government orders, proclamations, or 
 regulations are proved by the production of the Gazette con- 
 taining them, or of a copy certified by the statutory certifying 
 officer, no proof being required of his handwriting or official 
 position, but these can, of course, be prima facie evidence 
 only, if they arc challenged. Under the Bankers' Books 
 Evidence Act, 1879, a certified excerpt from bank books is 
 equivalent to the books themselves, but the copy must be 
 proved, as also thai the book from which it is taken is one of 
 the ordinary books of the bank, and that the entry was made 
 in ordinary course of business. Bankers' books are not 
 required to bo produced in Court, or before a Commissioner; 
 but the Court may grant an order authorising a party to inspect 
 the books and take entries, which, unless otherwise directed, 
 is to be served on the bank three clear days before the party 
 attends to inspect the books. 
 
 31 & 32 Vict. c. 37. M'Intyre v. National Bank, 
 
 42 Vict. c. 11. 1910, S.C. 150. 
 
 514. When a specification of documents has been approved 
 by the Court, the expense attendant upon the execution of the 
 commission is party and party costs, even although no docu- 
 ments have been recovered ; but if a party does recover 
 documents, and does not put them in evidence, he will not, 
 as a rule, be allowed the expense of the commission, even if 
 upon the merits he is successful, and is found entitled to 
 expenses. 
 
 M'Leod's Trustees v. Leslie, Mackie & Clark r. Cruikshanks, 
 
 1868, 6 M. 445. 1896, 4 S.L.T. 84. 
 
 515. Business books, not only of the opposing party, but 
 of third parties, may be recovered if they contain entries 
 relevant to the issue, but books cannot be called for, as for 
 instance, press copy letter books, to recover copies, until the 
 party seeking to recover has first used all due diligence to 
 recover the originals. Books are not usually themselves put 
 in evidence, for they generally contain entries relating to 
 matters other than those referred to in the action. An excerpt 
 la ken from the books, at the sight of the Commissioner, and 
 certified by him, is the proper form of production of book 
 entries in a process. If the books themselves are produced,
 
 DOCUMENTARY EVIDENCE. 217 
 
 they remain in the Commissioner's bands, Bubject to inspec- 
 tion, and the party producing the books should be afforded 
 the opportunity of being- present at any inspection of them by 
 other parties. 
 
 Graham v Sprot, 1847, 9 D. 545. Frazer v. Frazer's Trustees, 
 Robertson v. Earl of Dudley, 1897, 4 S.L.T. 228. 
 
 1875, 2 R. 935. Caledonian Railway Co. v. 
 Craig v. North British Railway Symington, 1912, S.C. 1033. 
 
 Company, 1888, 15 R. 808. 
 
 516. Although excerpts are sufficient to put in evidence, 
 exhibition of the actual books themselves may be required at 
 the proof. It frequently happens that much depends upon 
 the appearance of a book, or upon the position and surround- 
 ings of a particular entry, and the excerpt is received in 
 evidence subject to exhibition of the book itself at all neces- 
 sary stages of the case. If the entries are in any way peculiar, 
 the Commissioner should endeavour to make his excerpt as 
 nearly as possible a facsimile copy of the book. If the 
 general appearance is of consequence, the excerpt may require 
 to embrace more than the particular entry relating to the 
 action, as, for instance, where an entry has been interlined 
 in a cash book, or apparently entered under a wrong date, it 
 may be necessary that a complete page of the book be excerpted. 
 When they present peculiarities, the Commissioner should 
 report specially upon the appearance of the books. 
 
 Donaldson v. Manchester Assur- Couper v. Young, 1849, 12 D. 
 
 ance Company, 1833, 11 S. 190. 
 
 570. Beattie v. Paterson, 1863, 35 Jur. 
 
 Frazer v. Sandeman, 1836, 14 D. 180. 
 
 377. 
 
 517. Extracts from public records are received as evidence. 
 A keeper of such records is not bound to produce the records 
 themselves in a process. They are open to all having an 
 interest, and, extracts or certified copies being procurable for 
 payment, the proper course is to put in an extract. Govern- 
 ment officials will not be compelled to produce official 
 communications, as evidence in a litigation between private 
 persons, but communications from private persons may bo 
 ordered to be exhibited, and to be produced in process, if they 
 affect the interest or the personal character of another private 
 individual. If any State reason requires documents to be 
 withheld, production will not be ordered, even when a State 
 Department is a party in the cause; but, where injustice
 
 218 . TRIAL OF THE CAUSE. 
 
 would resull Erom (heir non-production, mere departmental 
 direcl ions as to I be custody of papers are not allowed to interfere 
 with their production in a Court of law. If, however, an 
 official witness or haver is hampered by such restrictions, the 
 diet should he adjourned to enable him to consult his 
 dej ;ni ment. 
 
 Henderson v. Robertson, 1853, Shaw v. Kay, 1904, 12 S.L.T. 
 
 15 D 292 495. 
 
 Hastings v. Chalmers, 1890, 18 Purvis v. Gilchrist, &c, 1905, 13 
 
 R. 244. S.L.T. 460. 
 
 Tierney v. Ballingall, 1896, 23 Sheridan v. reel, 1907, S.C. 577. 
 
 R. 512. Mail v. Edinburgh District 
 
 Gibson v. Caledonian Railway Tramways (1908), 1909, S.C. 
 
 Company, 1896, 33 S.L.R. 638. 244. 
 
 Brown v. Inland Revenue, 1897, Admiralty v. Aberdeen Steam 
 
 35 S.L.R. 340. Trawling Company (1908), 
 
 1909, S.C. 335. 
 
 518. It frequently happens that documents which are 
 already productions in a Court process are required as evidence 
 in another process. If the same agents are in both, the 
 convenient course is to borrow them ; but if this cannot be done, 
 the course is to cite the Sheriff-clerk, as custodier of the process, 
 as a haver. Documents, however, which, although in the 
 custod} r of a Court official, relate entirely to criminal 
 investigation or prosecution, cannot be called for as evidence 
 in a civil action. These are the property of the Crown. Thus 
 the procurator-fiscal or Sheriff-clerk cannot be called upon to 
 produce declarations of an accused person, or precognitions of 
 witnesses taken for the purpose of possible criminal prosecu- 
 tion, or documents recovered in the course of criminal 
 investigation ; but the criminal records of public facts may be 
 used as evidence in a civil cause, as, for instance, an extract 
 of a conviction of a crime, or statutory contravention, may 
 be put in evidence, and police books may be referred to to prove 
 such a fact as that at a certain time a particular person was 
 under arrest, although no charge may have followed. 
 
 Hill v. Fletcher, 1847, 10 D. 37. Henderson v. Robertson, 1853, 
 
 15 D. 292. 
 
 519. Documents produced in evidence are handed by the 
 haver into the custody of the Court, for the particular purpose 
 only of being used as evidence in the action in which they are 
 produced. When that purpose has been served, the agent of 
 the party who called for them should see that they are borrowed 
 up and returned to the person who produced them. They
 
 DOCUMENTARY EVIDENCE. 219 
 
 cannot be used as productions in another process, or for any 
 other purpose. Documents of title, for instance, which have 
 been exhibited in a process, as evidence of a fact, are not to be 
 used for the purpose of making up title or the like. A havei 
 who coinpulsorily exhibits documents does not thereby lose any 
 lien rights he may have over them. 
 
 Calder v. Montgomery, 1845, 17 Jur. 272. 
 
 520. There is no rule in the Sheriff Court, as in the Court 
 of Session, requiring productions to be lodged in Court before 
 the trial (except in a jury trial in the Sheriff Court). But the 
 report of a Commission may be put in at any time after the 
 Commission has been executed, and it is convenient for all 
 parties that this should be done in good time before the trial 
 diet. One party cannot, however, force another to put in the 
 productions he may have recovered, before the date fixed for the 
 trial. 
 
 Appendix. Rule 142. Act of Sederunt, 31st May, 1902. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 142. 
 
 521. An agent who has the custody of documents may 
 competently be called by a third party as a haver, although 
 his client is not called, and as a general rule, subject to the 
 agent's plea of confidentiality, an agent can be compelled to 
 produce whatever documents his principal could have been 
 compelled to produce. Where, however, the agent is called 
 upon by his own client to produce documents over which he 
 has a hypothec right for an unpaid account, he is entitled to 
 decline, at the client's call, even to exhibit them, if that might 
 defeat, or prejudice, his right. 
 
 Noble, 1843, 5 D. 723. M'Cowan v. Wright, 1853, 25 
 
 Calder v. Montgomery, 1845, 17 Jur. 306. 
 
 Jur. 272. 
 
 522. A general specification, such as " books, document-;, 
 " and papers," warrants a haver being called to produce any 
 relevant kind of document, and includes business books, letter 
 books, minute books, and the like, as well as loose papers ; 
 but, whilst the specification may be general, the citation musi 
 be particular, and a haver is bound to bring with him only 
 such books and documents as he has been reasonably notified 
 of, by description, or within the limits of dates specified. If,
 
 220 TRIAL OF THE CAUSE. 
 
 for instance, what is wanted is a bank book, or a minute book, 
 or a diary, or a press copy letter book, or invoices of particular 
 shipments, or correspondence upon a special subject, these 
 details should be given in the citation. 
 
 Mathers v. Laurie, 1849, 12 D. National Exchange Company, 
 
 433. 1857, 19 D. 689. 
 
 Rhind v. Commercial Bank, 1857, Hogg v. Campbell, 1864, 2 M. 
 
 19 D. 519. 1158. 
 
 523. When the haver has attended, with the books and 
 documents he has been cited to produce, the party who has 
 called him must be then prepared to call specifically for what 
 he wants out of them. As regards loose documents, these 
 may perhaps be called for in slump, as, for instance, corre- 
 spondence between certain parties, within specified dates, and 
 these may be put in without examination of each document, 
 unless the production of any is objected to; but, in the case 
 of books, the haver is not there to put in the books, but merely 
 to exhibit them, that excerpts relevant to the cause may be 
 made, and the party calling for the books must be able to ask 
 the haver to turn up particular information recorded in the 
 books. The agent of the party calling for production is not, 
 as is sometimes assumed, entitled to get the book into his own 
 hands, and to fish for the information he hopes to find in it. 
 If the book requires to leave the hands of the haver, the only 
 other person entitled to handle it is the judge, or the 
 Commissioner. If the party calling for production does not 
 know what he wants out of the books exhibited, that is his 
 misfortune ; a diligence to recover documents is not a roving 
 commission to create a case, but is only a diligence to recover 
 documents to support a case. 
 
 Cassilis v. Absolon, 1907, 15 S.L.T. 48. 
 
 524. Whilst a haver is not a witness, he is cited and 
 examined in the same manner as a witness. A haver may be 
 required to answer some questions, beyond handing in 
 documents, in response to the question whether he lias any. 
 lie may be interrogated to ascertain whether what is handed 
 in is all that exists of the class of document called for, or, if 
 the haver depone that the documents called for are not in his 
 custody, he may be interrogated as to whether he ever held 
 them, and as to his knowledge of where they now are. A 
 haver who produces documents at the call of one party, may be
 
 DOCUMENTARY EVIDENCE. 221 
 
 asked by another party if lie lias any other documents bearing 
 on the issues raised in the action, and if he has any he is bound 
 to produce or exhibit them to that other party. A diel for 
 recovery of documents is not, however, to be used as an 
 occasion for precognition. The deposition of a haver cannot 
 be used as evidence of facts, but he is nevertheless bound to 
 disclose all he knows of facts and circumstances which may 
 give a clue to trace missing 1 documents which have once been 
 in his custody, and so he may be asked such questions as when 
 he last handled or saw them, but not what their import is, for 
 that is evidence on the merits. 
 
 Gibson v. Ewan, 1852, 25 Jur. Tannent v. Hannay, 1873, 11 M. 
 
 163. 932. 
 
 Cullen v. Thomson, 1863, 1 M. Pearson v. Anderson, 1897, 5 
 
 284. S.L.T. 230. 
 Gordon v. Davidson, 1865, 3 M. 
 
 938. 
 
 10. Evidence to Lie in Retentis. 
 
 525. It sometimes happens that a witness cannot be relied 
 upon to attend a fixed diet of proof, and, if there is danger 
 of evidence being lost, the Sheriff may, before the official diet 
 of proof has arrived, either himself take, or grant commission 
 to take, the evidence of an intended witness to lie in retentis. 
 The Sheriff Courts Act, 1907, directs that this may be done 
 " at any time," but taking the deposition of a witness in 
 anticipation is always more or less unsatisfactory, and it is 
 only in exceptional circumstances that evidence will be per- 
 mitted to be taken before the record has been closed and proof 
 has been allowed. But such exceptional cases do occur. Thus, 
 in an action raised at the instance of a person who is bound 
 to leave the country before the time arrives when the record 
 can be closed, it may be necessary to take the pursuer's evidence 
 before he leaves. The same necessity may arise in regard 
 to an essential witness about to go abroad, or in regard to a 
 person who is of extreme age, or is mortally sick, and who may 
 not survive till the record is closed. The discretion is entirely 
 with the Sheriff, who may order evidence to be taken to lie in 
 retentis " if satisfied that it is desirable to do so." If the record 
 has not been closed, the motion should set forth specifically the 
 matter to which the witness is to be asked to depone. 
 
 Appendix, Rule 63. Robertson v. Robertson, 1897, 4 
 
 7 Ed. VII. c. 51, Sch. I., Rule 63. S.L.T. 358. 
 
 Buchanan v. Black, 1882, 9 R. Anderson v. Morrison, 1905. 7 F. 
 
 926. 561.
 
 222 TRIAL OF THE CAUSE. 
 
 526. The interlocutor granting commission to take evidence 
 to lie in retentis should embody the reason for granting it, 
 and should identify the witness, by name if possible. Some- 
 times individual names cannot be ascertained, and it is com- 
 petent, and customary, to grant a general order, as, for 
 instance, to take the evidence of " the officers and crew " of a 
 named vessel. If the evidence of a party is thus taken, then 
 the party who made the motion cannot afterwards refer the 
 cause to the oath of the party who has been so examined. 
 A certified copy of the interlocutor is sufficient authority for 
 the Commissioner to act. 
 
 Appendix, Rule 71. Laing v. Nixon, 1866, 4 M. 327. 
 
 Moreton v. Macdonald, 1849, 11 
 D. 1417. 
 
 527. The formal citation of a witness to give evidence to 
 lie in retentis is in practice often unnecessary. If citation is 
 necessary, llules 71 and 72 of the Sheriff Courts Act, 1907, 
 cover citation before a Commissioner as well as before the 
 Court, and the citation will be in the Form F of the Act of 
 1907. Rules 70, 71, 72, and 73 must be read along with 
 Rule 10, and the effect is that a warrant of citation to attend 
 before a Commissioner to give evidence to lie in retentis does 
 not require endorsation, and may be executed within Scotland 
 either by an officer of the Court granting the warrant, or of 
 the Court within whose jurisdiction it is executed, and that 
 a witness who is within Scotland may be compelled to attend 
 before the Sheriff's Commissioner, in the like manner and 
 under the like penalties as he may be compelled to attend 
 before the Sheriff himself. 
 
 Appendix, Rules 10, 70-73, Forms F G. 
 
 528. The Act of Sederunt of 1839, enacted to carry out the 
 now repealed Sheriff Court Act of 1838, restricted the choice of 
 a Commissioner to " the Clerk of Court, his acting depute, a 
 " practitioner before any Court of law of at least three years 
 " standing, a justice of the peace, or other magistrate." The 
 Sheriff Courts Act, 1907, which superseded the Act of Sederunt 
 of 1839, not having re-enacted this restriction, any suitable 
 person may now be appointed Commissioner. The general 
 practice will probably continue to be to appoint the Clerk of
 
 EVIDENCE TO LIE IN RETENTIS. 223 
 
 Court. There must be a special appointmenl in each case of 
 a named Commissioner. 
 
 Appendix, Rule 63. Act of Sederunt, 1839, s. 69. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 63. 
 
 529. The procedure before a Commissioner is in all respeel - 
 the same as that before the Court. Witnesses are cited in the 
 same manner, and examined in the same order. The Commis- 
 sioner need not record the evidence by his own hand, but may 
 employ a clerk or a shorthand writer, to whom he shall 
 administer the oath Je fideli administratione. The record 
 taken by the clerk and certified by him, or the extended 
 shorthand notes certified by the shorthand writer, is the record 
 of the evidence. The Commissioner need not necessarily dictate 
 to the clerk or shorthand writer what he is to record, but if the 
 evidence is recorded in long hand it may be prudent to do so. 
 The party moving for the commission, and his agent, are both 
 liable for the shorthand writer's fee. The party moving for the 
 commission is also liable for the fees of the Commissioner and 
 his clerk. The Sheriff Courts Act, 1907, is silent as to liability 
 of the agent for these fees, but under the former practice the 
 agent was (probably erroneously) regarded as liable for the 
 Commissioner's fee. As the client is disclosed to the Commis- 
 sioner j there seems no reason why the agent should be respon- 
 sible personally for anything except the shorthand writer's 
 fee, if one is employed. The Commissioner may insist upon 
 his fee being provided for, before he enters upon his duties, 
 or he may withhold delivery of the report of commission till 
 his fee has been paid. He may thus protect himself, and, of 
 course, although nominated, the Commissioner need not accept 
 office, if he has any dubiety about being paid. The element 
 which makes an agent liable for the shorthand writer's fee 
 therefore does not enter into the case of the Commissioner. 
 The shorthand writer has no means of protecting himself. The 
 Commissioner has. 
 
 Appendix, Rule 65. A B r. C D, 1843, 6 D. 95. 
 
 7 Ed. VII. c. 51, Sch. I., Rule M'Lachlan r. Flowordew. 1851, 
 
 65. 13 D. 1345. 
 
 Acts of Sederunt, 11th March, Maxwell v. Bell, 1864, 36 Jur. 
 
 1800, 23rd Jan., 1809, 19th 706. 
 
 Doc, 1835. 
 
 530. The Commissioner makes a report to the Court of the
 
 224 TRIAL OF THE CAFSE. 
 
 proceedings under the commission. This may be a separate 
 paper, the record of the evidence being made a production, 
 along with any other productions, but in practice the record of 
 the evidence is embodied in the report signed by the Commis- 
 sioner. The expense of a commission may be allowed, if the 
 incurring of thai expense was reasonable in the circumstances of 
 the moment, even if the witness appear at the trial. The Com- 
 missioner should also initial and number all productions made, 
 and accompany his report with an inventory. The taking of 
 evidence to lie in retentis is a precautionary measure taken by 
 a party, but the report is not of itself evidence. It can be made 
 evidence by being put in at the diet of proof, but, where the 
 commission is moved for by one party, it is in his option 
 whether he shall put it in or not (except in a jury trial, where 
 any party may require the report of a Commissioner to be 
 read). If therefore the other party wants the evidence, it may 
 be prudent of him when a motion is made to take evidence 
 in Court, to ask that the commission be expressed as a joint 
 commission. If the witness attends the diet of proof, the 
 report of the commission cannot be put in or referred to. 
 
 Appendix, Rules 65, 138. Pickford v. Johnstone, 1890, 6 
 
 7 Ed. VII. c. 51, Sch. I., Rules S.C.R. 252. 
 
 65, 138. Forrest v. Low, 1907, S.C. 1240. 
 
 Couper v. Cullen, 1874, 1 R. Spite v. Bow & M'Lachlan, 1908, 
 
 1101. 24 S.C.R. 58. 
 Graham v. Borthwick, 1875, 2 
 
 R. 812. 
 
 11. Proof on Commission. 
 
 531. Formerly it was a common practice in the Sheriff 
 Court to take proofs on commission, and the practice had 
 become so loose as to be indignantly described by the Court of 
 Session in 1852 as " irregular and illegal practice," to remedy 
 which an Act of Sederunt was passed in which the Sheriffs were 
 enjoined " to employ no Commissioner who does not conduct 
 " the business in a legal and regular manner." Written proofs, 
 however, have long ago disappeared with written pleadings, 
 and, since oral pleading became the rule, oral evidence has also 
 been the practice. If a witness can attend the diet of proof, 
 certainly the best form of evidence is his oral testimony before 
 the judge; but absence or illness may prevent a witness attend- 
 ing the diet of proof, and it is still competent, when necessary, 
 to take the deposition of a witness on commission. Formerly
 
 PROOF ON COMMISSION. 225 
 
 this was confined to the case of witnesses outwiti Scotland, 
 or unable to attend owing to age or infirmity (which was com- 
 monly interpreted to mean over seventy years of age), and even 
 yet witnesses in England or Ireland cannot be compelled to 
 attend before a Sheriff Court in Scotland, for the Witnesses 
 Jurisdiction Act of L§54 applies only to the Court of Session; 
 but in some sheriffdoms the expense and inconvenience of 
 bringing a witness from one part of the sheriffdom to another 
 may be as great as if he were beyond its bounds, and the Sheriff 
 Courts Act, 1!)07, extended the privilege not only to any wit- 
 ness or haver who is resident beyond the jurisdiction of that 
 Court, but also to one who, although within the sheriffdom 
 where the proof is to be led, yet " resides at some place remote 
 " from the seat of the Court." 
 
 Appendix, Rule 70. Sampson v. Hough, 1886, 13 R. 
 
 47 & 48 Vict. c. 61, s. 16. 1154. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Pirrie v. Caledonian Railway 
 
 70. Company, 1890, 17 R. 608. 
 
 Act of Sederunt, 23rd June, Macdonald v. Highland Railway 
 
 1852. Company, 1892, 20 R. 217. 
 
 532. If objection to the competency of evidence is taken, 
 the Commissioner has, under the Sheriff Courts Act, 1907, the 
 same power as the Court to repel the objection; but few Com- 
 missioners are likely to accept this responsibility. The alter- 
 native direction of the statute, and that most likely to be 
 adopted, is for the Commissioner to direct the evidence objected 
 to to be taken, subject to the noted objection, on a separate 
 paper, leaving the Sheriff to decide the question of its 
 competency. 
 
 Appendix, Rule 74. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 74. 
 
 533. The evidence being concluded, it is the duty of the 
 Commissioner to close the commission and report it to the 
 Court. He niay retain it till he has received his fee, which, 
 if not agreed upon, is fixed by the Sheriff. Proof taken 
 on commission is different from evidence taken to lie in 
 retentis, which may or may not be used. The proof on com- 
 mission is part of the proof allowed in the cause. The 
 report therefore is not retained by the Commissioner, but is 
 put in process immediately upon the conclusion of the com- 
 mission proceedings. 
 
 15
 
 226 TRIAL OF THE CAUSE. 
 
 12. Witness Abroad. 
 
 534. The most common form of procuring evidence of a 
 witness residing abroad is for the Court to grant a commission, 
 to a suitable party in the place where the witness resides, to 
 take and report his evidence. The Sheriff may appoint any 
 suitable person as commissioner. When the witness resides 
 ;it a place where there is a British Consul, a com- 
 mon form of commission is to the Consul, whom failing, the 
 Vice-Consul. But sometimes a witness is not willing to be 
 examined, and so a commission is useless, or for other reasons 
 a party may desire to have the deposition of the witness taken 
 before a judge. In that event, he lodges a minute, stating 
 the name and designation and place of residence of the witness, 
 and craving the Court to issue a letter of request to the tribunal 
 within whose jurisdiction the witness resides to take his evi- 
 dence. Interrogatories are adjusted in common form, and 
 appended to the letter of request, which is signed by the Sheriff, 
 and sent by the Sheriff-clerk to the Secretary of State for 
 Foreign Affairs, who transmits it to the foreign country for 
 execution. The report is returned to the Foreign Office, 
 whence it is transmitted to the Sheriff -clerk. 
 
 Acts of Sederunt, 15th March, Lawson v. Donaldson, 1893, 10 
 
 1890, 2nd Feb., 1893. S.C.R. 110. 
 
 535. Before a letter of request is signed by the Sheriff, 
 the agent of the party moving for it must become personally 
 bound for " the whole expenses which may become due and 
 " payable in respect thereof to the Court before which the 
 " evidence is taken, as well as to the witness examined." This 
 indefinite, and possibly onerous, responsibility (which is laid 
 upon the agent, not the client) does not encourage applications 
 of this sort, and in practice a letter of request is seldom asked 
 for, unless an attempt to get the evidence taken on commission 
 has failed. 
 
 Act of Sederunt, 2nd Feb., 1893, s. 3. 
 
 13. Proof of Law of Other Countries. 
 
 536. It is sometimes necessary, in a cause raised in the 
 Scottish Courts, to ascertain the law of other countries. In 
 the Court of Session the procedure as regards countries other
 
 PROOF OF LAW OF OTHER COUNTRIES. 227 
 
 than British dominions is contained in the Foreign Law Ascer- 
 fcainmenl Act of 1861; but iliis statute does ao1 apply in the 
 Sheriff Court, where there is no statutory machinery for 
 ascertaining foreign law. The law of a British dominion may 
 be ascertained in the Sheriff ('unit, as in the Court of Session, 
 under the provisions of the British Law Ascertainment Act of 
 1859; for that statute applies to "any action depending in 
 "any Court within His Majesty's Dominions," and in that 
 statute an "action" is denned as including every judicial 
 "proceeding instituted in any Court," If, therefore, in an 
 action pending in the Sheriff Court, it becomes necessary to 
 ascertain the law of, for instance, India or Canada, this 
 statute may be taken advantage of. 
 
 22 & 23 Yict. c. 63. 24 Vict. c. 11. 
 
 537. Whenever "it is necessary, or expedient, for the 
 " proper disposal of the action, to ascertain the law applicable 
 " to the facts of the case," the Sheriff is empowered to state a 
 case for the opinion of a superior Court of the country the law 
 of which it is desired to ascertain. Parties may be heard upon 
 the terms of the stated case, but the duty of stating it rests 
 with the Sheriff. The whole facts, as set forth on record, to 
 which the law is to be applied should be stated. The Sheriff - 
 clerk will transmit the stated case to the tribunal selected, and 
 there the parties in the cause may apply to be heard before 
 the opiuion is given upon the stated case. The opinion is 
 certified by the clerk of the Court which delivers it, and 
 transmitted to the Sheriff -clerk. Any party may then move 
 the Sheriff to apply the law so ascertained to the facts as stated 
 on record. 
 
 22 & 23 Vict. c. 63. 
 
 14. Conduct of Proof. 
 
 (a) Examination of Witness. 
 
 538. An agent has perfect freedom to decide the number 
 of witnesses he shall call, and the order in which they shall 
 be called, subject to the risk of being refused full expenses 
 although successful, if he call an unnecessary number of 
 witnesses. If one day is not sufficient to overtake the evidence, 
 care should be taken at the time of fixing the diet, if possible. 
 to set down the case for proof on successive days, and to cite
 
 228 TRIAL OF THE CATSE. 
 
 the witnesses accordingly. If the proof is adjourned for an 
 interval, witnesses reqnire to be again cited for the adjourned 
 diet. The Sheriff Court statutes define a session, but not a 
 sitting. The length of that depends upon the capacity for 
 endurance of the Sheriff, agents, mid witnesses. Sixty years 
 ago an eight-hours day was apparently regarded as a minimum 
 day's work, for an Act of Sederunt gravely directed that care 
 should be taken in arranging proofs likely to occupy more 
 than a day, to see " that witnesses be brought forward in 
 " sufficient number that each day's sederunt shall occupy no 
 " less than one entire day of eight complete hours." 
 
 Appendix, s. 25. Act of Sederunt, 10th March, 
 
 7 Ed. VII. c. 51, s. 25. 1849. 
 
 539. The witness who has been cited must, if insisted upon, 
 attend personally. It frequently happens that a person who 
 has been cited is in fact represented at the proof by another, 
 as, for instance, the partner of a firm by a clerk familiar with 
 the facts the partner is called to speak to. But this is matter 
 of arrangement. It is the right of the party who has called 
 a witness to have the party he has cited personally present. 
 A substitute is accepted only of consent. In any event, the 
 witness must depone on oath. Affidavits or written statements 
 by a witness are not accepted in the Courts of Scotland in lieu 
 of testimony, and it is not competent to contradict a witness 
 by referring him to statements made by him extrajudicially. 
 
 M'Loskie v. Glasgow Marine Insurance Company, 184.3, 5 D. 1013. 
 
 540. It is the practice in Scotland that witnesses are 
 examined separately, and not in the hearing of other intended 
 witnesses. At one time this rule was rigidly observed, but 
 in 1840 it was the subject of statutory enactment. It was an 
 objection to the competency of a witness that, without the 
 permission of the Court, and without the consent of the other 
 party, the witness had been present in Court during the 
 examination of other witnesses ; but the Court had a discretion 
 to waive the objection, if satisfied that injustice would not be 
 done by permitting the witness to be examined. In modern 
 practice, the exclusion of witnesses is not so rigidly enforced 
 as it formerly was, and if a witness has inadvertently been 
 present in Court, it is usually regarded as sufficient to note 
 that fact upon the notes of evidence. It is still, however, a
 
 CONDUCT OF PROOF. 229 
 
 ground of objection to a witness that he has heard, and may 
 possibly have been influenced by, the proceedings. It is 
 therefore prudent, in order thai the evidence of a witness may 
 be accorded its full weight, to keep witnesses outside the 
 Court-room until they are called. Even after a witness has 
 been examined, if there is a probability of his being recalled, 
 he ought not to be present in Court, for any witness may, 
 by leave of the Sheriff, be recalled. In the general case, the 
 witness, when he leaves the witness-box, if he is interested in 
 the proceedings, is entitled to be present, unless objection is 
 taken by a party in the cause. In any case, a witness who has 
 been examined ought not, until the proof has been concluded, 
 to hold any communication with the other witnesses relative 
 to the proceedings. If he does so, he may seriously affect the 
 weight to be attached to the evidence of unexamined witnesses, 
 with whom he has spoken after being himself examined. 
 
 3 & 4 Vict. c. 59. Robertson v. Stewart, 1874, 1 R. 
 
 15 Vict, c. 27, s. 3. 4. 532. 
 
 Stuart v. Mitchell, 1833, 11 S. Hoev v. Hoey, 1884, 11 R. 578. 
 
 1004. ' 
 
 541. The rule as to exclusion of witnesses may be waived 
 of consent. An exception is commonly made in the case of 
 medical men, and of scientific skilled witnesses generally. It 
 is often not only no objection, but decidedly in the interest of 
 all concerned, that such witnesses should hear each other's 
 evidence. As matter of right, however, the parties to the 
 action are the only witnesses who are entitled to be present 
 during the whole proceedings, and, if objection is made, and 
 insisted in, all others will be excluded. Where a skilled witness 
 is called to give an opinion, he is entitled to hear stated, or to 
 read, a statement of the facts in regard to which he is asked 
 to express an opinion; but in the general case the business of 
 a witness is to state facts, not opinions, and the examination 
 of a witness should be directed only to eliciting the facts upon 
 which an argument is intended to be founded, and to which it 
 is intended to ask the Court to apply the law. 
 
 542. The examination is conducted in the English tongue. 
 If a witness is unable to speak English, he may be examined 
 through a sworn interpreter. If a witness speaks English, and 
 is of sufficient intelligence to understand the nature of the 
 oath and to give evidence, but owing to some bodily ailment
 
 230 TRIAL OF THE CAUSE. 
 
 is unable to articulate distinctly enough to be readily under- 
 stood by a stranger, a member of his family, or some one 
 who from close association with him understands his mode 
 of speech, may act as sworn interpreter. A dumb person 
 also is a competent witness, whose sign or lip language may be 
 interpreted. In cases of defective speech, or want of speech, 
 however, if a witness can hear and write, it is competent, and 
 often more satisfactory, that he write down the answers to ques- 
 tions put to him. If the witness is deal and dumb, it would be 
 a competent form of examination, although a tedious one, that 
 both question and answer be put in writing, but in the present 
 day few such witnesses are ignorant of the sign language, and 
 they are commonly examined through an interpreter. 
 Lord Advocate v. White, 1842, 1 Broun 228. 
 
 543. In the examination-in-chief of a witness, leading 
 questions should be avoided, but leading a witness is not 
 necessarily putting a leading question. It is often necessary 
 to put on record narrative not really in dispute, and over this 
 a witness may be led, but, when merely introductory matter 
 has been passed, and the material facts are the subject of 
 inquiry, the evidence of a witness is lessened in value if his 
 statement is an answer to a leading question, by which is meant 
 a question so put as to suggest to the mind of the witness the 
 answer desired. But the ideal question is not always, as is 
 sometimes supposed, that which admits of a categorical answer. 
 A question which can be answered by a yes or no, may be as 
 much a " leading question " as any other which suggests the 
 answer wanted. 
 
 544. When a witness is speaking to facts, it is presumed 
 that he is speaking from his own knowledge. If it turns out 
 on cross-examination that his knowledge is second-hand, his 
 evidence will be discarded as hearsay evidence. But if the 
 witness do know the facts, his evidence is not necessarily 
 restricted to stating them baldly. lie may go further and state 
 what was the impression he formed at the time of the facts 
 to which he is speaking. Thus, in the case of expressions used, 
 a witness may be asked not only to repeat the exact expression 
 which he heard used, but may be asked also his impression at 
 the time as to whether the speaker meant his remark to be 
 taken seriously or jocularly, or whether the remark was part
 
 CONDUCT OF PROOF. 231 
 
 of a general discussion or altercation. There is a great 
 difference between a person saying to another without any 
 provocation "You're a liar"; and the same person, upon a 
 charge of falsehood being made against him, retorting "You're 
 " another." 
 
 545. Whilst it is true that, in the general rase, examina- 
 tion-in-chief should be directed only to ascertaining facts, it is 
 not at all times possible to dissociate fact and belief, and the 
 belief founded upon the Bad may be evidence quite as important 
 as the fuel iiself. Thus, in general, where a witness accepts 
 a faci which he does not himself know, bui lias only heard, 
 his belief upon that faet is of little or no consequence; but it is 
 different when the witness is expressing a belief or persuasion 
 formed in his mind because of his own knowledge of certain 
 facts. Sometimes also the belief of a witness is competent and 
 important evidence-in-chief, all hough he may not be able to 
 swear positively to tacts. Thus, a person may competently 
 express his opinion that a document is in the handwriting 
 of a particular person named, although he may not 
 be able positively to say, as a matter of fact, that he saw it 
 written ; and opinion may be admissible as evidence where, 
 from the nature of the case, opinion or belief alone is possible, 
 as in the case of professional or expert witnesses. Skilled 
 witnesses, however, ought not to be asked their general opinion 
 upon the merits of the case, but only their opinion upon 
 specific facts put to them. 
 
 546. The rule as to rejection of hearsay evidence suffers 
 qualification where the object is to establish what had been 
 said by a deceased person, for statements made by deceased 
 persons, if proved to have been made, are admissible in 
 evidence, the degree of weight to be attached to such evidence 
 being a question of circumstances, but in no circumstances 
 can a mere precognition of an intended witness, who lias died 
 between the date of precognition and the date of trial, be 
 received as evidence. Statements made by a party in a cause 
 are admissible as evidence against him, and so a party may 
 be asked what he said on a particular occasion. It is not com- 
 petent, however, to ask a witness who is not a party in the cause 
 what was said by a party, unless it was said in the presence of
 
 232 TRIAL OF THE CAT SE. 
 
 the opposite party, or unless what was said is part of the res 
 (jt sice iii the cause. 
 
 A B v C D 1848. 11 D. 289. Stevenson v. Stevenson, 1893, 21 
 
 Geils r. Geils, 1855, 17 D. 397. R. 617. 
 
 Graham v. Western Bank, 1865, 
 3 M. 617. 
 
 5 17. Secondary evidence, permissible to supply the evidence 
 of a deceased person who, if alive, would have been called as 
 a witness, does not, however, extend to documentary evidence, 
 unless, at least, it is first very clearly established that the 
 document does not exist. If it exists, it should be recovered 
 under diligence. If the cause depend upon the exact terms 
 of a deed, the case may have to he sisted to permit of the 
 deed being set up in an action of proving of the tenor; but in 
 the case of ordinary commercial documents, or correspon- 
 dence, of which a draft or copy has not been preserved, it may 
 be competent, after the absence of documents has been 
 reasonably explained, to ask a witness to give his recollection 
 of their general import. When a document is in 
 existence, and has been recovered, the witness should 
 have it before him when being questioned upon it. A 
 party may not by parole testimony qualify or traverse a 
 written document to which he is a party, but he may 
 explain it. It is always competent to ask a party in a cause 
 what his version is of the meaning of his own document. In 
 special cases, even a third party witness might be asked, not 
 to controvert, but to supplement, the statements in a writing, 
 as, for instance, a law agent who has drawn a deed, bearing 
 to be granted for good and onerous causes, might be asked 
 (subject to his pleading the objection of confidentiality) what 
 were the causes. 
 
 Gibson v. Anderson, 1846, 9 D. Ivison v. Edinburgh Silk Com- 
 
 1 pany, 1846, 9 D. 1039. 
 
 Yelverton, 1862, 24 M. 696. 
 
 548. A scientific or skilled witness may give his evidence- 
 in-chief in the form of a report in writing, which medical 
 witnesses frequently do. An ordinary witness gives his 
 evidence in answer to questions, but he is entitled to refresh 
 his memory by referring to" book entries, made by himself or 
 on his behalf, or to his notes made at or about the time to 
 which the facts relate, and when they were fresh in his recol- 
 lection. A witness, however, cannot speak to facts of which
 
 CONDUCT OF PROOF. 233 
 
 he knows nothing beyond what he finds in such book entries 
 or memoranda. If he has no recollection or knowledge 
 independently of these, his evidence is valueless, and 
 incompetent. These aids may be used only to restore faded 
 recollection of facts, not to create knowledge of the facts. 
 
 549. A witness is not entitled to refuse to aid the course 
 of justice by declining to give his testimony, merely been mm- 
 the subject-matter is disagreeable to him, or because the part 
 he took in events under review may make him appear foolish, 
 or may lead to his being held a debtor, or being made subject 
 to a civil action at law. He may, however, refuse to answer 
 any questions which might tend to criminate himself, by 
 rendering him, individually, or as art and part with others, 
 subject to a criminal prosecution, or which, short of liability 
 to criminal prosecution, might make him infamous in the 
 eyes of his neighbours, as, for instance, a third party witness 
 in an affiliation action is entitled to decline to answer a question 
 inferring that he had been guilty of adultery. What questions 
 a witness may be bound to answer greatly depends upon the 
 nature of the case, and the circumstances of the trial. 
 
 46 Geo. III. c. 37. Graham v. Sprott, 1847, 9 D. 
 
 Inglis v. Gardner, 1843, 5 D. 545. 
 
 1029. Don v. Don, 1848. 10 D. 1046. 
 
 550. Every witness called by a party is that party's witness. 
 It is prudent therefore, in general, not to call a witness who 
 is unfriendly disposed. But the advantage of examining him 
 first may outweigh the disadvantage of his being hostile, and 
 sometimes, as, for instance, in affiliation cases, calling a 
 hostile witness may be the only possible way of attempting 
 to prove a fact. It is now competent to call the parties in a 
 cause as witnesses. It has long been a common practice in 
 affiliation eases, and it is now also common in defended 
 separation cases, for the pursuer to call the defender as the 
 first witness. The Supreme Court has expressed disapproval 
 of the practice, but has not pronounced it incompetent ; and 
 in this class of case it is often inevitable, because, to obtain 
 certain admissions from the defender is often essential to a 
 pursuer's case, and, if he is not called by pursuer, the defender 
 may not go into the witness box at all. A pursuer's agent, 
 no doubt, would always prefer to cross-examine a hostile 
 witness, rather than to examine him in chief, but he cannot
 
 234 TRIAL OF THE CAFSE. 
 
 rely upon having the opportunity of doing so, and ho might 
 peril the pursuer's case by not calling the defender. 
 
 M'Bain o Davidson, 1860, 22 D. M'Whirter v. Lynch, 1908, S.C. 
 
 738. 12. 
 
 M'Arthur v. M'Queen, 1901, 3 Mackay v. Munn, 1909, 25 S.C.R. 
 
 F. 1010. 369. 
 Darroch v. Kerr, 1901, 4 F. 396. 
 
 551. As a general rule, a party is not entitled to discredit 
 a witness called by himself, but he may be allowed to do so 
 when I he calling; of such a witness was unavoidable. The 
 Evidence Act of 1852 made it competent to prove that a witness 
 had, upon some other occasion, made a statement different 
 from thai he was giving in evidence; but if it is intended 
 thus to discredit a witness, a foundation must be laid for the 
 contradictory proof by examining- the witness himself, in 
 detail, as to the different statement intended to be proved 
 against him. That must be a statement specifically made. 
 The mere fact that the law agent of the party who has called 
 the witness, or the law agent's clerk, has noted in his precog- 
 nition something different from what the witness states in the 
 witness box, is not contradictory proof in the sense of the 
 statute. The effect of such contradictory proof is to destroy 
 the evidence of the witness. 
 
 15 Vict c 27, s. 3. Darroch v. Kerr, 1901, 4 F. 396. 
 
 Call v. Gall, 1870, 9 M. 177. 
 
 552. A witness may be privileged in refusing to disclose 
 matters of professional confidence. Confidentiality is a rela- 
 tive plea, for what may be a confidential communication in 
 one set of circumstances is not necessarily so in another. The 
 plea must be judged of in the light of the circumstances of each 
 particular case. There is no absolute rule. One person whom the 
 law exempts on this ground, as a matter of right, is a counsel 
 or law agent. ITe may refuse to disclose what passed between 
 him and his client. Hut the privilege of pleading confidenti- 
 ality belongs to the client, who may waive it. If the client 
 sanctions a disclosure being made, the law agent is bound to 
 make it in evidence. If a client calls his agent as a witness, 
 he, of course, waives the privilege. In general, confidences 
 between a doctor and his patient, or between a troubled soul 
 and the clergyman to whom he has resorted for spiritual 
 comfort or priestly absolution, will be respected, and probably 
 also such confidence as that of a correspondent to a newspaper
 
 CONDUCT OF PROOF. 235 
 
 editor ; and, unless it is of essential consequence, such parties 
 will not be required to disclose in evidence fads which they 
 came to know professional!} 7 . But there may be instances 
 where such disclosure is essential, in the interests of justice, 
 and it is within the discretion of the Court to require such 
 testimony to be given. 
 
 Jarvis v. Anderson, 1841, 3 D. Sutherland v. Ritchie, 1900, 8 
 
 990. S.L.T. 100. 
 
 M'Cowan v. Wright, 1852, 25 Simcock v. Scottish Imperial In- 
 jur. 164. surance Company, 1901, 9 
 
 Macdonald v. Macdonalds, 1881, S.L.T. 234. 
 
 8 R. 357. Macdonald v. N.Y. Insurance 
 
 Stewart v. Great North of Scot- Company, 1903, 11 S.L.T. 120. 
 
 land Railway Company, 1896, Mackinnon v. the s.s. 
 
 23 R. 1005. "America," 1904, 12 S.L.T. 
 
 Morrison & Mason v. Clarkson, 411. 
 
 1896, 4 S.L.T. 157. Devlin v. Spinolli, 1906, 14 
 
 S.L.T. 9. 
 
 553. Besides examining in chief the witnesses called to 
 support his own case as laid, a pursuer should also exhaust 
 each witness in anticipation upon the defence stated, or upon 
 the separate case laid for the defender, if the witness can throw 
 any light upon it. In other words, it is in accordance with 
 present-day practice, and greatly tends to the saving of time, 
 and the avoidance of confusion, that the pursuer should lead 
 what used to be called his conjunct probation along with his 
 proof-in-chief. At one time a proof proceeded in compart- 
 ments. A party led evidence to support his own averments, 
 which was called his proof -in-chief. The evidence which he 
 led to contradict his opponent's proof was called his conjunct 
 proof, but this he did not bring forward till his opponent had 
 led his proof-in-chief, and when it was brought forward it was 
 restricted to controverting his opponent's proof -in-chief. The 
 result was that proof was very apt to become fragmentary and 
 the taking of proofs dilatory. The present-day practice was 
 aptly expressed in the Act of Sederunt of 1S39, " When a 
 "witness is brought forward by one party, he shall be subject 
 r '"at the same time to examination-in-chief by the adverse 
 "party, and to cross-examination by both parties." 
 
 3 & 4 Vict. c. 59, s. 4. Dick & Stevenson v. Mackay, 
 
 Act of Sederunt, 1839, s. 78. 1880, 7 R. 778. 
 
 (bj ( ross-examinat ion . 
 
 5-34. The rules which apply lo examination-in-chief apply 
 also, generally, lo cross-examination, as regards competency of
 
 236 TEIAL OF THE CACSE. 
 
 questions, mode of questioning, and the like. But much 
 greater latitude is permitted in cross-examination, and a 
 witness may fairly be questioned, not only in regard to the 
 f'aris themselves, but also in regard to the sources of his 
 knowledge of the facts, his attitude towards the parties to 
 the cause, his interests, or his prejudices, which may cast 
 a light upon his testimony, or influence the weight which 
 should be attached to it. Leading questions, however, 
 all hough more often permissible in cross-examination than in 
 examination-in-chief, are not more satisfactory, and equally 
 tend to weaken the evidence. The object of cross-examination 
 is to test the reliability of the testimony given, and so, what- 
 ever may reasonably affect the credibility of the witness, or 
 whatever may tend to show that his views are distorted or 
 exaggerated, or the like, is relevant cross-examination. But 
 the cross-examination, like the examination-in-chief, must 
 keep within the cause. It is not competent to cross-examine a 
 witness in regard to facts not relevant to the cause, with the 
 object of afterwards leading evidence to contradict him, and so 
 impeach his testimony on general character grounds, as being 
 that of a witness not to be relied upon in the cause, for the 
 reason that, outside of it, he has been detected in some 
 untruthful statement. But within the case it is competent to 
 test his reliability, by showing that on some other occasion he 
 had given a different version of the same facts as he is now 
 speaking of. 
 
 3 & 4 Vict, c. 59, s. 4. Whealer v. Methuen, 1843, 5 D. 
 
 15 Vict. c. 27, s. 3. 1221. 
 
 Gall v. Call, 1870. 9 M. 177. 
 
 (c) Re-examination. 
 
 555. Upon the conclusion of the cross-examination, the 
 examiner-in-chief is entitled to re-examine the witness, to 
 clear up any confusion which has arisen in regard to facts 
 spoken to by the witness, or to dispel any complexion which 
 the cross-examination has tended to put upon the facts them- 
 selves, or upon the explanation of them given by the witness. 
 The re-examiner is not, however, entitled to open up any 
 new matter with the witness, nor is he entitled to go back upon 
 his examination-in-chief, in regard to points which the cross- 
 examination has not touched. The object of re-examination 
 is not to supply omissions in the examination-in-chief, but
 
 CONDUCT OF PROOF. 237 
 
 only In clear up flic true meaning of the witness upon points 
 already dealt with by botb sides. If any point Ims inadver- 
 tently been omitted, the course is to ;isk ;i question to be pul 
 by the Court. The re-exainin.'il ion ends the testimony of the 
 witness, unless the Court desires to put any question- to him, 
 but a witness may be recalled before the proof has been closed, 
 if the ( 'ourt permit. 
 
 15 Vict. c. 27, s. 4. Hoey v. Hoey, 1884, 11 R. 578. 
 
 Robertson v. Stewart, 1874. 1 R. 
 (532), 587. 
 
 (d) Proof in Replication. 
 
 55G. In present-day practice, an order for proof in 
 replication is not frequent, the necessity for it having been 
 largely obviated by the practice of each party not only 
 supporting- his own case in evidence, but leading proof in 
 anticipation to meet his opponent's case. It may occasionally 
 happen, however, that, after a pursuer has closed his proof, 
 and perhaps dismissed his witnesses, some point may come 
 out in the course of the defender's proof, which the pursuer 
 could not reasonably have been expected to anticipate, and in 
 that event it is still competent to allow a proof in replication, 
 the interlocutor allowing which should specify the exact point 
 upon which this addendum to the proof is allowed. In the 
 general case, however, it will probably he sufficient to obtain 
 the leave of the Court to recall one or more witnesses, to clear 
 up the point which pursuer has not sufficiently anticipated 
 in his proof (probably because it was not sufficiently emphasised 
 in the pleadings), and permission so to recall witnesses will 
 probably avoid the necessity of a formal proof in replication. 
 
 Magistrates of Edinburgh v. Gairdner v. Young, 1874, 2 R. 
 
 Warrender, 1862, 1 M. 13. 173. 
 
 Richardson v. Fleming, 1867, 5 
 
 M. 586. 
 
 (e) Appeal during Proof. 
 
 557. Objections to the competency of evidence do not 
 necessarily interrupt the course of a proof, but may delay 
 the issue of judgment, and may re-open the proof. If an 
 objection to evidence is taken, the objection, and answer 
 made to it, and the ruling of the Sheriff, are noted upon the 
 notes of evidence, but the examination of the witness neverthe- 
 less proceeds. At the close of the proof, however, or within 
 seven days thereafter, the Sheriff-Substitute may grant leave
 
 238 TRIAL OF THE CAUSE. 
 
 to appeal the objections taken during the course of the proof 
 to the Sheriff. The precise form in which this is to be done 
 : prescribed, but whal is evidently contemplated is that 
 the procedure should be Bummary, for the Sheriff may dispense 
 with a bearing, and is directed to *' dispose of such appeal \\ ith 
 "the leas! possible delay." If the Sheriff decides that the 
 evidence should not bave been allowed, the summary direction 
 is that be may delete the same Erom the notes of evidence. If, 
 mi the other band, he think thai the evidence sought to be led 
 should have been allowed, he may direct it to be taken. 
 
 Appendix, Rule 75. 7 Ed. VII. c. 51, Sch. I.. Rule 
 
 75. 
 
 558. This prompt and summary procedure is convenient 
 when the objection taken relates to single questions. But 
 when objection has been taken to a particular line of 
 examination, great care will require to be exercised in stating 
 objections, for when a particular line of examination is entered 
 upon, objection stated at the commencement need not be 
 repeated in respect of each question, a general objection 
 applying to all that follows in the same line. Evidence taken 
 subject to objection, therefore, might extend to some length, 
 and, as cross-examination will have also followed upon it, what 
 would fall to be deleted if the line of examination were 
 disallowed would be the whole examination and cross- 
 examination in that particular line. There is the possibility 
 also of the evidence having to be reinstated should an ultimate 
 appeal declare it to have been competent. At the moment there 
 is no appeal beyond the Sheriff upon the question of the 
 competency of the evidence objected to. But, when the case 
 has been ended, if appeal be then competent, that appeal 
 submits to review "the whole of the interlocutors pronounced 
 " in the cause," amongst which, of course, would be that of 
 the Sheriff sustaining or repelling the objections to evidence, 
 and, if the Appeal Court took a different view from the Sheriff, 
 evidence which had been deleted might have to be reinstated 
 upon the notes of evidence. This incidental appeal during the 
 proof, therefore, should not be rashly insisted upon. 
 
 Appendix, s. 29, Rule 75. 7 Ed. VII. c. 51. s. 29, Sch. I., 
 
 Rule 75. 
 
 559. A similar summary appeal to the Sheriff is allowed
 
 CONDUCT OF PROOF. 239 
 
 upon an objection to produce documents upon the plea of 
 confidentiality. The objection, and the Sheriff's ruling upon 
 ii, are noted, and appeal may be takes verbally in open Court, 
 either by a party in the cause, or by the witness or haver 
 making objection to produce. This appeal also the Sheriff is 
 directed to dispose of with or without hearing parties, and 
 with the least possible delay. 
 
 Appendix, Rule 76. 7 Ed. VII. c. 51. Sch. I . Rule 
 
 76. 
 
 560. The provisions of the Sheriff Courts Act, 1907, relating 
 to incidental appeal upon the competency of evidence are not 
 appropriate to a summary cause, unless there is a record of the 
 evidence. But if notes of evidence are taken, it seems com- 
 petent to raise questions of competency of evidence before the 
 Sheriff. The question whether evidence was properly admitted 
 or rejected is a question of law, and the Court of Session may 
 ultimately determine questions of competency of evidence, 
 if the Sheriff certifies the case for appeal. 
 
 Appendix, s. 8, 28, Rule 75. 
 
 (f) Close of Proof. 
 
 561. The pursuer leads in the proof, unless the defender 
 has been ordained to lead. This is generally the order of proof 
 w-here the pursuer's case is admitted on record, and defender 
 sets up a counter claim; or where, for instance, a pursuer 
 sues upon a document of debt which the defender admits to be 
 genuine, but pleads has been discharged. The party who leads 
 is required to close his proof, before the other party leads any 
 evidence; but of consent a party's proof is sometimes closed 
 subject to future examination of a named witness, who, for 
 sufficient reason, cannot attend, the other party meantime 
 proceeding with his proof. When a party has led all his 
 evidence, the shorthand notes record that his proof is closed. 
 
 (g) Reopening tin- Proof. 
 
 562. After the proof has been closed, neither party can 
 insist upon leading further evidence upon the case as it Btood 
 when the order for proof was made; but the Court has an 
 important discretion to allow amendment at any stage, and so 
 a record may be opened up even after a proof has been closed,
 
 240 TRIAL OF THE CAUSE. 
 
 in which event, of course, further proof may be necessarily 
 allowed, rhis power, however, will not be lightly exercised 
 when amendmenl will involve further proof, and, as a general 
 rule, a proof will not be reopened for oral testimony unless 
 for an exceptionally good reason. The rule is not so strict as 
 regards the reception of additional documentary evidence. The 
 statute of L907, indeed, expressly empowers the Court to allow 
 documents to be put in evidence "at any time before judg- 
 ement." A document founded on, for instance, and referred 
 to at the proof, but which could noi at the time be recovered, 
 might be received, but if its non-production .it the proper time 
 were the result of carelessness on the part of the party pro- 
 ducing it, the Court would probably attach to its late reception 
 the expenses condition recognised by Ride 68. 
 
 Appendix, Rule 68. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 563. It is not a reason for reopening the proof that a 
 branch of the case has been omitted to be proved, or that a 
 witness who might have been called at the proof was not called, 
 or that, after renouncing probation, a party had (hanged his 
 mind. Before additional proof will be allowed, it must be 
 shown to the Court that a party has been prejudiced through 
 no fault of himself or his agent, but solely owing to circum- 
 stances beyond his control, and in general a proof will be 
 allowed to be reopened only because of an alteration made 
 upon the record, by amendment being allowed, either by the 
 Sheriff-Substitute, or by an appellate Court. 
 
 Brown v. Gordon, 1870, 8 M. Allan v. Stott, 1893, 20 R. 804. 
 
 432. Glengarnock Iron Company v. 
 
 Mabon v. Cairns. 1875, 3 R. 47. Cooper & Company, 1895, 22 
 
 R. 672. 
 
 564. After a proof has been declared closed, the Sheriff- 
 Substitute cannot allow further proof, unless the record has 
 been opened up, and he can only open up the record for the 
 purpose of amendment. The Sheriff on appeal, however, has, 
 under the Sheriff Courts Act, 1913, express power to "allow 
 "further proof." If, therefore, there is good reason for so 
 doing, the proof might by way of appeal be reopened, although 
 the power of the Sheriff to allow further proof does not infer 
 that the party desiring to reopen the proof is to be permitted 
 to supply evidence which he might have led, but has carelessly
 
 CONDUCT OF PROOF. 241 
 
 omitted to lead, before the Sheriff-Substitute. An allowance 
 of further proof is not likely to be made by the Sheriff unless 
 in conjunction with leave to amend. The statutory direction 
 does not say who is to hear the " further proof "; but, presum- 
 ably, what is meant is that, if the Sheriff decides to allow 
 further proof, he should for that expressed reason recall the 
 interlocutor proceeding upon the proof which had already been 
 taken, and remit the case back to the Sheriff-Substitute, to 
 take the further proof, and thereafter re-decide the case. 
 
 Appendix, s. 27. 2 & 3 Geo. V. c. 28, Sch. I. 
 
 15. Record of Evidence. 
 
 565. The Sheriff Courts Act, 1907, made a considerable 
 change in the letter of the statutory direction as to recording 
 evidence, but little in the practice, for in the busier Sheriff 
 Courts the dictation of the evidence by the Sheriff 
 had long been a practical impossibility, and was besides 
 unnecessary, when experienced shorthand writers were 
 available to record the evidence. Under the 1907 Act, the 
 Sheriff is entitled, but not bound, to dictate the evidence, and 
 the extended notes certified by the shorthand writer form the 
 official record of the parole testimony given at the proof. 
 When written pleadings were abolished, in 1853, and oral 
 testimony took the place of written proofs, the direction to the 
 Sheriff was either to take the notes of evidence himself or 
 dictate the proof to a " competent person." The Evidence Act 
 of 1874 recognised a shorthand writer as the competent person, 
 but retained the direction to dictate the evidence. The 1907 
 Act assimilated the practice of the Sheriff Court to that of the 
 Court of Session as regards the record of evidence, by not 
 requiring the Sheriff necessarily to dictate the evidence ; but 
 there is still this difference in practice, that in the Court of 
 Session it is the judge, whilst in the Sheriff Court it is the 
 shorthand writer, who certifies the record of the evidence. 
 
 Appendix, Rule 65. 7 Ed. VII. c. 51, Seh. I., Rule 
 
 16 & 17 Vict. c. 80, s. 10. 65. 
 
 37 & 38 Vict. c. 64, s. 4. 
 
 566. The shorthand writer's fees are paid in a com mission 
 by the party who moved for a commission, and by the parties 
 equally in a proof or jury trial. The cost of the shorthand 
 notes is a good charge, as party and party costs, against an 
 
 16
 
 242 TRIAL OF THE CACSE. 
 
 Tin successful party, even if no use lias been made of the notes. 
 The law agent of the party liable is also personally liable for 
 this expense. The Sheriff is empowered to make an order 
 directing payment. Such an order, if not implemented, would 
 entitle the Sheriff to dismiss an action, or to grant decree or 
 absolvitor under Rule 56. 
 
 Appendix, Rules 56, 57. Marshall v. Shearer, 1903, 11 
 
 7 Ed. VII. c. 51, Sch. I., Rules S.L.T. 71. 
 
 56, 67. 
 
 567. The Sheriff Courts Act, 1907 embodied a provision of 
 the Evidence Act, 1874, by conferring on the Sheriff the power 
 to amend the shorthand writer's notes. The direction is that, 
 " if the correctness of the notes of evidence or a deposition be 
 " questioned, the Sheriff may satisfy himself in regard thereto 
 " by the examination of witnesses or otherwise, and may amend 
 " the record of evidence or a deposition." This in very special 
 cases may be a useful power, but in practice the revision of 
 notes of evidence is confined to the correction of obvious errors, 
 and it is not likely to be permitted to go further. If correction 
 is required so drastic as to involve the re-examination of 
 witnesses, then the correction is not that of the record of the 
 evidence, but rather of the proof itself, and such a so-called 
 correction would be more aptly designated additional proof. 
 
 Appendix, Rule 66. 7 Ed. VII. c. 51, Sch. L, Rule 
 
 37 & 38 Viet. c. 64, s. 4 (2). 66. 
 
 568. In a summary cause, it is not essential that a record of 
 evidence be taken. If it is taken, however, the rules as to 
 payment of the shorthand writer and correction of the notes 
 are applicable. In any cause, the proof should, so far as 
 possible, proceed continuously, and, when it has been closed, 
 that fact should be noted in the notes of evidence. 
 
 Appendix, s. 8, Rules 41, 65-69. 7 Ed. VII. c. 51, s. 8, Rule 41, 
 
 Sch. I., Rules 65-69. 
 
 16. Hearing. 
 
 569. If the parties or their agents desire to be heard, before 
 judgment is pronounced, the Sheriff is bound to hear them, 
 for the statutory direction to this effect in the Sheriff Courts 
 Act, 1907, is peremptory. It is not essential that the extended 
 notes of evidence be before the Court, or before the parties, at
 
 iii:.\i;i.\<;. 243 
 
 the debate, but in complicated causes, or where proof has been 
 led in portions, or has been partly taken on commission, it is 
 convenient that the notes of evidence be in process before 
 parties are hoard. The Sheriff Court Act of 187G peremptorily 
 directed the debate to take place within seven days of the proof, 
 but in a heavy case it may happen that the notes of evidence 
 cannot be available till much later. The direction of the Act 
 of 1907 leaves the matter entirely in the hands of the Sheriff, 
 with the general direction that he " shall hear the parties or 
 "their agents, and thereafter shall pronounce judgment with 
 " the least possible delay." 
 
 Appendix, Rule 78. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 39 & 40 Vict. c. 70, s. 23. 78. 
 
 17. Reference to Oath. 
 
 570. All other proof may be superseded by a party electing 
 to refer to the oath of the opposing party. This is a 
 privilege which subsists so long as the action itself is pending 
 to any effect. Even where decree on the merits has been 
 granted, if extract has not been obtained, the cause is still 
 pending, and reference to oath is still competent. The reference 
 may be retracted, on payment of expenses and by leave of 
 the Court, at any time up to the actual moment of making 
 oath. If, however, a party has been called as a witness by the 
 other party and examined, reference to his oath is not com- 
 petent, and adducing a party as a witness has not the effect 
 of a reference to his oath. 
 
 Bennie r. Mack, 1832. 10 S. 255. Longworth v. Yelverton, 1865, 
 Nisbet v. Taylor's Executors, 3 M. 645, 5 M. (H.L.) 144. 
 
 1840, 3 D. 332. Aikman v. Aikman's Trustees, 
 Adam v. M'Lauchlan, 1847, 9 1868, 6 M. 277. 
 
 D. 576. Dick v. Hutton, 1876, 3 R. 448. 
 
 571. Reference to oath can only take the place of competent 
 proof. It is not competent, for instance, by referring a 
 case to the oath of party, to evade an objection that parole 
 proof is incompetent. Thus, a contract to which writing is 
 essential cannot be set up by averment and reference to oath. 
 The reference is competent only in regard to matters of fact, 
 which are specifically averred in a competent and relevantly 
 stated action, and a party cannot, by deposition on oath, 
 contradict his own averments on record, nor can a party refer
 
 244 TRIAL QY THE CAUSE. 
 
 to his opponent's oath, with a view to establishing facts plainly 
 inconsistent with his own averments. 
 
 Ersk. IV. 2, 8. Thomson v. Simpson, 1844, 7 I). 
 
 Macfarlane v. Watt, 1828, 6 S. 106. 
 
 1095. 
 
 ")72. The mode of referring to oath is by minute. Formerly 
 it required to be signed by the party or his mandatory, but 
 under the Sheriff Courts Act, 1907, it may be signed either by 
 the party or his agent. Under the earlier practice a minute, 
 although customary, was not absolutely essential, so long as 
 the partv deponing clearly understood that he was deponing 
 under reference to oath, but the Act of Sederunt of 1839 made 
 a minute essential, and the Sheriff Courts Act, 1907, also 
 makes a signed minute essential. The reference must be 
 unconditional. It is effective only in the process in which it 
 is made, for the deposition cannot be used in any other process. 
 
 Appendix, Rule 64. Act of Sederunt, 1839, s. 84. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Henderson v. Smith, 1852, 14 D. 
 
 64. 844. 
 
 573. The minute does not become operative till the Court 
 has interponed authority to it, and the Court has a discretion 
 to refuse to do so, if obvious injustice would result, or the 
 Court may attach conditions to allowing the reference, as, for 
 instance, consignation may be required where the competency 
 of the reference is doubtful, or the procedure is obviously taken 
 merely to get delay. In practice, however, a reference to oath 
 is generally regarded as the privilege of a litigant, of which 
 he is not to be deprived unless in very special circumstances. 
 
 Conacher v. Conacher, 1859, 21 Longworth v. Yelverton, 1865, 3 
 
 D. 597. M. 645, 1867, 5 M. (ILL.) 144. 
 
 574. Reference to oath is not competent unless there is an 
 unqualified issue before the Court. The record must be 
 complete, and all preliminary pleas disposed of, before a 
 minute of reference can be entertained. Although the oath 
 of party is not, strictly speaking, proof, it takes the place of 
 proof, so that, if another mode of disposing of the case has 
 already been adopted, as, for instance, by reference to a 
 judicial referee, or if the party to whose oath reference is 
 proposed to be made has already been examined parole on
 
 REFERENCE TO OATH. 245 
 
 the matter, or if probation has been renounced, the reference 
 
 is incompetent. Objection, however, is foreclosed unless it is 
 
 taken at the time the reference is proposed. If a party appear 
 
 and depone, he is held to have waived his objection. 
 
 16 Vict. c. 20, s. 5. Macleay v. Campbell, 1876, 3 
 
 Turnbull v. Borthwick, 1830, 8 R. 999. 
 
 S. 735. Maclaren v. Shore, 1883, 10 R. 
 
 Dewar v. Pearson, 1866, 4 M. 1067. 
 
 493. 
 
 575. The deposition of the witness may be taken in 
 shorthand, in the same manner as evidence, and the power to 
 correct the shorthand notes covers a deposition ; but, unless 
 to correct an obviously clerical error, the Court is not likely 
 to interfere with the recorded deposition. An examination 
 under a reference to oath is conducted by the agent of the 
 party who has made the reference. The agent of the deponent 
 may be present, but cannot cross-examine, although he may 
 take objection to incompetent questions, and may suggest 
 questions to be put by the Court. If documents are referred 
 to, they may be put in process, and incorporated in the deposi- 
 tion by reference. When a deposition has been made it must 
 stand. The interrogator is not of right entitled to enter upon 
 a re-examination to clear up points. If there is ambiguity, the 
 Court may put, or allow 7 , questions with the view of clearing it 
 up. 
 
 Appendix, Rules 65, 66. Broatch v. Dodds, 1892, 19 R. 
 
 7 Ed. VII. c. 51, Sch. I., Rules 855. 
 
 65, 66. Heslop v. Runcie, 1894, 22 R. 
 
 Ersk. IV. 2, 15. 83. 
 
 Blair v. M'Phun, 1856, 18 D. Paterson v. Cowie's Executors, 
 
 1202. 1904, 7 F. (J.) 68. 
 
 Jackson v. Cochrane, 1873, 11 
 
 M. 475. 
 
 576. The whole facts on record may be referred to the oath 
 of party, or only part of them, but the reference must be of 
 matters of fact only, not of questions of law. Where the 
 reference is to the oath of partners of a firm, the depositions 
 are taken as a whole. Particular facts may be referred. If 
 so, these must be specifically set forth in the minute of refer- 
 ence. If the deponent refuse to answer relevant questions, he 
 is held as confessed. If a party fail to appear at the diet for 
 making oath, he is in default under Rules 56 and 64, and the 
 other party may claim judgment. The oath may be
 
 246 TRIAL OF THE CAUSE. 
 
 appointed to be taken either before the Sheriff or before a 
 
 Commissioner. 
 
 Appendix, Rules 56, 64. Brown v. Edgley, 1843, 5 D. 
 
 7 Ed. VII. c. 51, Sch. I., Rules 587. 
 
 56 64 Finlay v. Outram, 1851, 14 D. 
 
 Taylor v. Hall, 1829, 7 S. 565. 48. 
 
 Conacher v. Robertson, 1829, 8 Cameron v. Armstrong, 1851, 13 
 
 S. 141. D - 1256 - 
 
 577. It is still competent to take the oath of a party to lie 
 in retentis in a clear case of urgency, but this, which was never 
 satisfactory, is not likely to be resorted to, now that the 
 recent statute has made it competent for a Commissioner to 
 take a deposition. If there is urgency, the course is to grant 
 commission to take the deposition. Any person who is compos 
 mentis, and who is capable of giving evidence in a cause, is 
 competent to depone under a reference to oath. Where there 
 are alternative cravings in an action, and one is referred to 
 oath, the other is thereby departed from. 
 
 Appendix, Rule 65. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 65. 
 
 578. In determining the import of the reference, regard is 
 had only to what the deponent has sworn to. The sole question 
 is quid juratum est, not quid verum est. The deposition is 
 conclusive against the deponent only. Thus the oath of a 
 bankrupt binds himself, but does not affect his creditors ; or, 
 in an action of multiplepoinding, the oath of an arrestee binds 
 the arrestee, but does not affect the common debtor; or, in an 
 action by or against an assignee, the oath of the assignee binds 
 himself, but not the cedent. 
 
 579. The reference may be to the oath of the opposing 
 party, or to a person who is /n-trjmsifu, as a wife, a trustee, 
 a manager. Where the opposing party is an individual, the 
 minute may be expressed in general terms, but, when the party 
 is a corporation or firm, the reference should be to a party 
 named or described by his office in the minute, as to a partner 
 or manager. If a person is named in the minute the oath 
 of that person alone can be taken. In the case of a descriptive 
 firm, the minute may be general, for the other party may 
 not know the names of partners or managers. It will rest 
 with such a firm to put forward a person to make the oath 
 if the reference is sustained, and the party who is expected, as
 
 PREFERENCE TO OATH. 247 
 
 a general rule, to depone, is a party having a substantial 
 
 interest, as a partner or a manager, whose oath will bind the 
 
 firm. 
 
 Dick on Ev. s. 1577. Mitchell v. Moultry, 1882, 10 R. 
 
 M'Nab v. Lockhart, 1843, 5 D. 378. 
 
 1014. Farquhar v. Farquhar, 1886, 13 
 
 Bertram v. Stewart, 1874, 2 R. R. 596. 
 
 255. 
 
 580. Reference to oath is competent in a summary cause 
 in the same manner as in an ordinary action. It may be made 
 so soon as pleas have been noted, the record closed, and pre- 
 liminary pleas disposed of. The oath is conclusive upon the 
 matters referred. It is in the same position as an arbiter's 
 award, or the report of a judicial referee. 
 
 Aikman v. Aikman's Trustees, 1868, 6 M. 277.
 
 CHAPTEK X. 
 INCIDENTAL PROCEDURE. 
 
 1. Amendment. 
 
 581. The Sheriff Courts Act, 1907, very greatly extended 
 the power of amendment of pleadings. Formerly, if new 
 parties had to be called, the clumsy procedure was a supple- 
 mentary action, or, if new facts came to a party's knowledge, 
 he had to put in a condescendence of res noviter. As regards the 
 conclusions of the action, these could be amended only of 
 consent. Under the recent statutes all these things are done 
 by way of amendment, the very broad provision authorising 
 the amendment of the whole initial writ including the instance 
 and the crave, as well as the condescendence or defences. 
 The Court may allow any amendment which is necessary to set 
 forth " the real question in controversy." 
 
 Appendix, Rule 79. Summerlee Iron Company v. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Caledonian Railway Company, 
 
 79. 1911, S.C. 458. 
 
 Paterson v. Wallace, 1909, S.C. 
 
 20. 
 
 582. The broad phraseology of the statute, however, is 
 qualified by other provisions, and amendment is not the remedy 
 for every set of circumstances, especially where the statute 
 provides a different remedy. As regards the instance, for 
 example, amendment is not to be confused with abandonment. 
 Thus, where three defenders have been called, it is competent, 
 by way of amendment, to add a fourth; but it is not competent 
 to drop the action against one of the three, and so reduce the 
 defenders to two, by simply deleting the name of the third. 
 In other words, the instance may be added to, but not taken 
 from, by way of amendment. If it is proposed not to insist 
 upon the action against one of several defenders, the proper 
 course is to abandon the action, quoad that defender, in which 
 event that defender gets his expenses, or he alternatively gets 
 absolvitor, as matter of right. If the deletion of a defender's
 
 AMENDMENT. 249 
 
 name were to be treated as an amendment, (he defender might 
 be deprived of that right, and he might not even get his 
 expenses, for, as regards amendment, the awarding of expenses 
 to a defender is a matter in the discretion of the Sheriff. 
 
 Appendix, Rules 79-81. 7 Ed. VII. c. 51, Sch. L, Rules 
 
 79-81. 
 
 583. So also as regards the pursuer's instance. It is 
 competent, by way "of amendment, to add to the number of 
 pursuers, but it is not competent to delete the name of one of 
 several pursuers; for, to allow an amendment of that kind 
 would be to defeat a defender's right to obtain absolvitor, as 
 against any pursuer who brings him into Court, and then does 
 not insist in the action. If, therefore, one of several pursuers 
 retires from the case, the proper course is, not to amend by 
 deleting his name, but for that pursuer to put in a minute that 
 he no longer insists, and upon that the Court will, quoad that 
 pursuer, assoilzie the defender. This, of course, does not 
 affect the situation as between the remaining pursuers and the 
 defender. It is a question of circumstances whether a pursuer 
 going out shall be held liable in expenses to defender. If his 
 doing so necessitates the defender shifting his ground of 
 defence, or abandoning the defence altogether, the outgoing 
 pursuer will probably be held liable in expenses. 
 
 Appendix, Rule 79. 
 
 584. Adding defenders is not to be confused with substitut- 
 ing a representative for a defender, as, for instance, the trustee 
 of a defender who has become bankrupt, or the executors of a 
 defender who has died. A trustee or executor is brought into 
 the case by being sisted, not by way of amending the record. 
 The representatives of a deceased defender may have an 
 interest to seek to be sisted, even although the pursuer may 
 not desire to further pursue his action. 
 
 Morrison r. Hunter & Ross. 1822, M'Culloch o. Hannay and 
 
 2 S. 62. Others, 1829, 8 S. 122. 
 
 585. At one time, the consent of the defender was neces- 
 sary before a new pursuer could be brought in. This is not 
 now required, for the Sheriff Courts Act, 1907, expressly 
 sanctions the adding of parties. As regards the adding of a 
 pursuer, the matter is simple. He can crave by minute to be 
 sisted as a pursuer. But as regards a new defender, due care
 
 250 INCIDENTAL PROCEDURE. 
 
 must, of course, be taken thai be is subject to the jurisdiction 
 
 of the Court, and thai the action is served upon him, and that 
 
 he has time afforded him to state a defence and come into line 
 
 with the other defenders. A motion to add a defender is not 
 
 necessarily made by a party in the cause, for a person who 
 
 has not been made a party, but who can show that he has a real 
 
 interest, may come forward and crave to be sisted. As a 
 
 general rule, however, amendment is made upon the motion 
 
 of a party who is already in the process, and upon the question 
 
 whether the proposed amendment should be allowed, all other 
 
 parties are entitled to be heard. 
 
 Appendix, Rule 79. Laing's Sewing Machine Com- 
 
 7 Ed. VII. c. 51, Sch. I., Rule pany v. Norrie & Son, 1877, 5 
 
 79. R. 29. 
 
 Watt v. North -Eastern Railway Paterson v. Wallace, 1909, S.C. 
 
 Company, 1866, 4 M. 318. 20. 
 Lord Blantyre v. Lord Advocate, 
 
 1876, 13 S.L.R. 213. 
 
 586. Amendment is competent in a summary cause, to the 
 like effect as in an ordinary action. In both, however, the 
 Court may allow amendment only upon conditions as to 
 expenses or re-service or otherwise. At this stage the only 
 expenses dealt with are the expenses directly occasioned by the 
 amendment; but when a party is added he may, when expenses 
 in the cause come to be dealt with, be found liable in expenses 
 prior to, as well as subsequent to, his being sisted. In a 
 defended summary cause it may be competent, by way of 
 amendment, practically to substitute a new case or a new 
 defence for that originally set up, although, when a party 
 desires to amend in such a way as practically to subvert his 
 original pleading, and to set up a new case, the Court will 
 probably regard that as a case for attaching a condition of 
 payment of expenses to the date of amendment. One of the 
 many weak points in the debts recovery process, which the 
 summary cause has supplanted, w r as that there was no 
 machinery for amendment, and that the pleas as originally 
 noted formed the only record. 
 
 Appendix, Rules 79-80. Muir v. Tay Marine Insurance 
 
 30 & 31 Vict. c. 96. Company, 1843, 5 D. 579. 
 
 Wallace v. Eglinton, 1836, 14 S. Torbet v. Borthwick, 1849, 11 D. 
 
 599. 694. 
 
 Ellis v. Ellis, 1870, 8 M. 805. 
 
 587. In an undefended action " error or defect in the initial 
 " writ " may be cured by amendment, but if the defect is
 
 A M KNDMENT. 251 
 
 radical, as, for instance, the wrong- ground of action lias been 
 libelled, it is not satisfactory, although it may be competent, 
 to amend, and it is better to serve a fresh action. The pro- 
 vision in this respect of the Sheriff Courts Act, 1907, is 
 practically the same as that of the Act of 1876. In an 
 undefended action, of course, there is nothing but the initial 
 writ to amend, and so the powers do not require to be so wide 
 as for amendment in a defended action. Whether the action 
 is defended or undefended, the rules have some features in 
 common, as (a) the allowing of amendment at all is, as it 
 has always been, in the discretion of the Court; (b) the allow- 
 ance may be made conditional, in the undefended cause upon 
 re-service, and in the defended cause upon payment of 
 expenses ; (c) amendment is not to validate prior diligence to 
 the prejudice of creditors. 
 
 Appendix, Rule 26. Dallas v. Mann, 1853, 15 D. 
 
 39 & 40 Vict. c. 70, s. 13, 24. 746. 
 
 7 Ed VII. c. 51, Sch. I., Rule Henderson v. Minto, 1860, 22 D. 
 
 26. 1126. 
 
 588. In an undefended action, amendment may be allowed 
 
 at any time up till the signing of the decree in absence. But 
 
 in no circumstances is the expense attending amendment to be 
 
 allowed against the defender, and the effect is not to make 
 
 better or worse the position of any one interested. Thus 
 
 amendment, although it cures defect in the initial writ itself, 
 
 does not validate diligence which might prejudice other 
 
 creditors of defender. An arrestment, therefore, on the 
 
 dependence, which was invalid because the action, as it stood 
 
 at the time of arrestment, would not then have grounded a 
 
 decree in absence, is not made a valid arrestment against third 
 
 parties in consequence of an amendment having cured the 
 
 defect in the action itself, because to so validate what was an 
 
 invalid arrestment might prejudice the then creditors of the 
 
 defender. On the other hand, neither the defender himself 
 
 nor those representing him, nor his subsequent creditors, are 
 
 to benefit, because of the pursuer having made a curable error 
 
 in his initial writ. Amendment, therefore, would validate 
 
 the arrestment, as in a question with the defender himself, or 
 
 with creditors in a debt contracted by the defender subsequent 
 
 to the date of arrestment. 
 
 Appendix, Rule 26. Fischer v. Andersen, 1896, 23 
 
 7 Ed. VII. c. 51, Sch. 1., Rule R. 395. 
 
 26.
 
 252 INCIDENTAL PROCEDURE. 
 
 589. As regards amendment of an undefended action, the 
 Sheriff Courts Act, 1907 contains a phrase which was not in 
 any of the prior statutes, and docs not occur in the rule as to 
 defended causes. It provides thai "any diligence which was 
 "competent upon the original writ shall be competent upon 
 "the amended writ." The exact meaning of this new provision 
 is not quite clear. It is probably to be read as meaning that 
 an amendment is not to have the effect of making competent 
 upon the amended writ, or following decree, any diligence 
 other than that which was competent upon the writ as origin- 
 ally drawn, as, for instance, an action, decree in which could 
 not have been followed by imprisonment, is not to be permitted 
 by amendment to be converted into an action, decree in which 
 might warrant imprisonment. A so-called amendment of that 
 sort goes much beyond an " error or defect." In an undefended 
 cause, the amendment power is not so broad as in a defended 
 cause, where the conclusions can be altered and new parties 
 called. The power of amendment in an undefended action is 
 limited to the correction of error or defect. It is not com- 
 petent to alter the character of the action. 
 
 Appendix, Rule 26. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 26. 
 
 590. In a defended cause, the discretionary power of the 
 Court as to amendment is practically unrestricted, and, if 
 fully exercised, might have such far-reaching effect as prac- 
 tically to present, in the shape of an amended action, what is 
 really a new action altogether. Should a motion to amend 
 take this form, however, the discretion of the Court will probably 
 be exercised to the effect of refusing it, unless, perhaps, where 
 the alterations, although in form apparently setting forth a 
 new claim by new people, in substance really presents the 
 same claim, as, for example, an action by a married woman, 
 who had originally sued alone, and in which, upon motion to 
 amend, the name of her husband as her curator is added to 
 the instance, or an action nominally against an individual, 
 but who is really a trustee or executor; or an action upon a 
 joint and several document of debt in which, by inadvertence, 
 only one of the joint obligants has been called, and it is desired 
 to amend the instance by adding the other. 
 
 591. A defender is not likely to object to, or the Court to
 
 AMENDMENT. 253 
 
 refuse, a motion to amend when the effect of the amendment 
 is to reduce the claim made against the defender, however 
 extensive in form may be (lie amendments necessarv to enVH 
 that object. But, wherever the proposed amendments will 
 liiive Hie effect of giving the action an entirely new character, 
 and especially where the effect of amendment will be to increase 
 the claim or demand made in the initial writ, the Court will 
 probably allow amendment only upon very sufficient cause 
 shown, and upon payment of expenses; for, when a pursuer 
 comes into Court, he is presumed to know what is his claim 
 or demand, and the law, which does not encourage fishinc 
 litigation, will not readily permit a pursuer to shift his ground 
 of action after he has heard what the defender has to say in 
 answer to the original writ. 
 
 592. Amendment will not, of course, be sanctioned to the 
 effect of incidentally making competent what might otherwise' 
 have been incompetent. Thus, just as to entitle a pursuer to 
 call an omitted defender in the old form of a supplementary 
 action, that defender must have been subject to the jurisdiction 
 of the Court, so also, if a defender's name is proposed to be 
 added by way of amendment, it must be clearly competent to 
 call him, as, for instance, if he is a foreigner he must have 
 been first made subject to the jurisdiction by arrestment ad 
 fundandam jurisdictionem, just as if a separate action were 
 being raised against him. In like manner also, where a 
 conclusion is proposed by amendment to be enlarged, it must 
 be clearly shown that the enlargement would, if stated by 
 itself in a substantive action, have been a competent craving 
 in the Sheriff Court, and, generally speaking, the proposed 
 amendment must be something more than merely making 
 pleadings more ornate. It must be necessary to make clear 
 what is the real issue between the parties. 
 
 Paterson v. Wallace (1908), 1909, Craven v. Dalbeattie Magis- 
 
 S.C. 20. trates, 1908, 25 S.C.R. 109. 
 
 Invergordon Auction Co. v. Mac- 
 millan, 1908, 24 S.C.R. 187. 
 
 593. In a defended cause amendment may be allowed " at 
 "any time," but it should be timeously made. If it is not, 
 it may be refused, or at all events an expenses condition may 
 be made more onerous. After service, no alteration can be 
 made upon the instance or the crave of the initial writ without
 
 254 INCIDENTAL PROCEDURE. 
 
 Leave of the Court; but as regards the condescendence and 
 defences it is not necessary to move for leave to amend before 
 the closing of the record, for up till that stage parties may 
 adjust their pleadings. But so soon as the record has been 
 closed, no alteration, however trivial, can be made without 
 the leave of the Court, and any alteration, however, slight, is 
 amendment (not adjustment), and may, if allowed, be subject 
 to an expenses condition. Formerly, in the Sheriff Court, 
 after the record had been closed, it could not be altered at all, 
 even of consent. The Act of 1853 conceded a limited power 
 of amendment to the Sheriff, who might, when a case was 
 before him on appeal, ex froyrio motu open up the record " if 
 "it shall appear to him not to have been properly made up." 
 This is repeated in the Sheriff Courts Act, 1913. But it does 
 not appear to do more than allow the Sheriff to alter the form 
 of pleadings already stated, but not aptly expressed. The 
 Act of 187G considerably broadened the scope of possible 
 amendment by authorising the amendment of any error or 
 defect in the record, but it fell far short of the wide power of 
 amendment conferred by the Sheriff Courts Act, 1907, which 
 in effect entitles the Court to allow amendment of either 
 pursuer's or defender's pleadings at any time before judgment, 
 subject to conditions as to expenses, and that the amend- 
 ment is reasonably necessary to show what is the real contro- 
 versy between the parties. 
 
 Appendix, Rules 26, 79, 80. Magistrates of Douglas v. Earl 
 
 16 & 17 Vict. c. 80, s. 16. of Dalhousie, 15th Nov., 1811, 
 
 39 & 40 Vict. c. 70, s. 24. F.C. 
 
 7 Ed VII. c. 51, Sch. I., Rules Gibson v. Smith, 1870, 8 M. 445. 
 
 26 80 Paterson v. Wallace (1908), 1909, 
 
 2 Geo. V. c. 28, s. 27. S.C. 20. 
 
 2. Wakening. 
 
 594. If no interlocutor has been pronounced in a cause for 
 a year and a day, the action is held to have fallen asleep. If 
 all parties want it wakened, the Sheriff will do so upon their 
 si '-nine: a minute to that effect. If they do not all concur, a 
 
 Do # 
 
 party desiring to have the action wakened may lodge a minute, 
 and, after such intimation and publication as the Court may 
 direct, the cause may be wakened. It then resumes at the 
 stage at which it fell asleep, and the interlocutor wakening 
 the cause will send it to the appropriate roll for procedure. 
 The provisions of the Sheriff Courts Act, 1907, as to wakening
 
 WAKENIAC 255 
 
 are to the same eflVH ;is those of the Act of 1876, except that, 
 in the more recent statute, the peremptory directions in regard 
 to (often quite unnecessary) publication of the minute of 
 wakening- have been discarded, and the whole matter of 
 intimation and publication left in the Sheriff's hands. 
 
 Appendix, Rule3 101-103. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 39 & 40 Vict. c. 70, sec. 49 (2). 101-103. 
 
 595. The period of a year and day runs consecutively 
 during- session and vacation alike. The action may be kept 
 awake by the pronouncement of any interlocutor, however 
 formal. An action in which no interlocutor has ever been 
 pronounced at all cannot be wakened. Upon the expiration 
 of the year and day the instance falls. In this connection the 
 first deliverance, granting warrant for service, is not an 
 " interlocutor," so that an action which has been served, but 
 in which no other step has been taken, cannot be wakened, for 
 it has, after three months, ceased to exist. It does not, 
 therefore, bar a new action. 
 
 Appendix, Rule 35. American Mortgage Company v. 
 
 7 Ed. VII. c. 51, Sch. 1., Rule Sidway, 1907, 1908, S.C. 500. 
 
 35. Robb & Crosbie v. Forbes, 1911, 
 
 M'Kidd v. Manson, 1882, 9 R. 27 S.C.R. 162. 
 
 790. 
 
 3. Abandonment. 
 
 596. The pursuer of an action is always entitled to abandon 
 it. The mode of abandonment in the Sheriff Court, as pro- 
 vided for in the Act of Sederunt of 1839, is in effect adopted in 
 the direction of the Sheriff Courts Act, 1907, except that the 
 condition as to payment of expenses is more definite in the 
 recent statute. The 1839 provision simply accepted as the 
 common law that abandonment inferred payment to defender 
 of expenses, but did not specify any time within which payment 
 of expenses must be made. The Sheriff Courts Act, 1907, 
 provides a compulsitor for payment, by enacting that, if the 
 expenses are not paid within fourteen days, the pursuer may 
 be deprived of the opportunity of raising- a new action, by 
 decree of absolvitor being pronounced. 
 
 Appendix, Rule 81. Act of Sederunt, 1839. s. 61. 
 
 7 Ed VII. c. 51, Sch I., Rule Ross v. Mackenzie, 1889, 16 R. 
 
 81. 871. 
 
 597. The procedure is that the pursuer puts in a minute,
 
 256 INCIDENTAL PROCEDURE. 
 
 which must be unqualified in its terms, and should simply- 
 state that the pursuer offers to abandon the action. The minute 
 may be signed by the pursuer or his agent. If the agent signs 
 it, he should get a special mandate, as a general agency 
 mandate does not cover abandoning an action. The defender, 
 upon the minute being lodged, obtains his expenses taxed, 
 and upon payment of these expenses the action is dismissed, 
 leaving the pursuer free to bring a new action if competent. 
 If defender will not accept payment of the taxed expenses, 
 the pursuer may get the action dismissed by consigning the 
 amount of the expenses. If, however, the taxed expenses are 
 not paid within fourteen days of taxation, the defender is 
 entitled to decree of absolvitor, with expenses. Payment of 
 expenses to defender is a condition precedent which cannot be 
 waived unless of consent. The statutory direction is peremp- 
 tory that only " upon payment to defender of his expenses the 
 " Sheriff may dismiss the action." Till the abandoned action 
 is actually out of Court, a new action is not competent. 
 
 Appendix, Rule 81. Stewart v. Stewart, 1906, 8 F. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 769. 
 
 81 Aird v. Tarbert School Board, 
 
 A it ken v. Dick, 1863, 1 M. 1038. 1907, S.C. 22. 
 Kennedy v. Macdonald, 1876, 3 
 
 R. 813. 
 
 598. A minute of abandonment may be lodged " at any 
 
 " stage of an action before an interlocutor granting absolvitor 
 
 " or dismissing the action has been pronounced." The statute 
 
 does not preclude the minute being withdrawn, so that it may 
 
 be withdrawn at any time previous to the entry in the Court 
 
 books of an interlocutor sustaining the minute and dismissing 
 
 the action. The Court may impose conditions as to expenses 
 
 in granting leave to withdraw the minute, but if the minute 
 
 stands, and the pursuer timeously pays or consigns the 
 
 defender's expenses, the Court has no option, and is bound 
 
 to dismiss the action. 
 
 Appendix, Rules 81-83. Roxburgh v. Commercial Bank, 
 7 Ed. VII. c 51, Sch. I., Rules 1903, 19 S.C.R. 248. 
 
 8i 83 Lee v - Pollock's Trustees, 19Ub, 
 Dalgleish v. Mitchell, 1886, 23 8 F. 857. 
 
 S.L.R. 552. 
 
 599. A defender does not now require formally to withdraw 
 his defences by minute of abandonment, nor does he require 
 to move the Court for leave to withdraw his defences, if he
 
 ABANDONMENT. 257 
 
 resolve not further to defend the action, lie may simply cease 
 to attend the cause, in which case the pursuer may ask decree 
 by default. 
 
 Appendix, Rule 56 7 Ed. VII. c. 51, Sen. I., Rule 
 
 56. 
 
 600. A minute of disclaimer is somewhat akin to a minute 
 of abandonment. It is the mode by which a party, who has 
 been made a litigant without his consent, gets out of the 
 process. This seldom occurs in practice, but it is a possible 
 event, and it occasionally happens that a minute of disclaimer 
 is lodged. If it is, some party in the. cause must instantly 
 produce authority to use the disclaimer's name, otherwise the 
 Court will pronounce the appropriate interlocutor, letting the 
 disclaimer out of the process, and dealing with the matter of 
 expenses. 
 
 Philip v. Gordon, 1848, 11 D. Cassidy v. Bilsland, 1907, 15 
 
 175. S.L.T. 615. 
 
 17
 
 CHAPTER XI. 
 
 JUDGMENT. 
 
 1. Form. 
 
 G01. It is a statutory direction that a Sheriff Court judg- 
 ment, whether in an ordinary action, a summary cause, or a 
 summary application, shall be in writing. As regards a 
 summary application, this is the only statutory direction. As 
 regards both an ordinary action and a summary cause, there 
 are the further directions («) that in his final judgment on the 
 merits the Sheriff shall set forth his findings in fact and in law 
 separately; and (b) that to all interlocutors except those of 
 a formal nature he shall append a note setting forth the 
 grounds on which he has proceeded. The findings in fact, as 
 well as the findings in law, must be in the interlocutor itself, 
 and not in the note, and the findings in fact should include 
 not only the bare facts upon which the judgment is based, but all 
 the relevant facts set forth on record which have been admitted 
 or proved. Besides the obvious convenience to any appellate 
 Court, the separation of findings in fact and findings in law 
 is of importance if the case goes to the House of Lords, for, if 
 a cause has originated in the Sheriff Court, the findings in 
 law only are subject to review in the supreme tribunal. 
 
 Appendix, s. 50, Rule 82. Mackay v. Dick & Stevenson, 
 
 6 Geo. IV. c. 120, s. 40. 188i; 8 R. (H.L.) 37. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Caird v. Sime, 1887, 14 R. 
 82. (H.L.) 37. 
 
 Glasgow Gas Company v. Work- Mackay v. Mackenzie, 1894, 21 
 
 ing Men's Ab. Society, 1866, R. 894. 
 
 4 M. 1041. M'Caffer v. Allan, 1896. 33 
 
 Melrose v. Spalding, 1868, 6 M. S.L.R. 601. 
 
 952. Little v. Stevenson, 1896, 23 R. 
 
 (H.L.) 12. 
 
 2. Date. 
 
 602. The date of an interlocutor is the date of its entry in 
 the books of Court. When and where it is actually signed is 
 of no consequence, but it must be signed. Omission to sign
 
 DATE. 259 
 
 a merely formal interlocutor may ao1 invalidate a process, 
 but if an interlocutor of consequence, as, for instance, allowing 
 proof, is unsigned, all the subsequent proceedings are inept. 
 Smith v. M'Aulay, 1846. 9 D. 190. 
 
 3. Revision. 
 
 603. A clerical or incidental error may be corrected before 
 extract, or before transmission of the process in an appeal, but 
 if any party desires an alteration in an interlocutor, lie should 
 call attention to it immediately the interlocutor is issued. 
 Corrections should be initialled. What is a " clerical or 
 " incidental " error is a question of circumstances, but may 
 include any reasonable correction which does not alter the 
 substance of the judgment, and even a slight addition, such as 
 the insertion of a rate of interest, or a finding for expenses, 
 or the addition of the word "decern," although the use of 
 the word " decern " is no longer necessary, as it once was, 
 to enable an interlocutor to be extracted. If an interlocutor 
 has been pronounced in error, it may be corrected ; but it is 
 not competent to issue a second interlocutor modifying or 
 explaining it. 
 
 Appendix, Rule 84. iMonerieff v. Perth Com- 
 
 55 & 56 Vict. c. 17, s. 4. missioners, 1886, 13 R. 927. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Clark & Macdonald v. Bain, 
 
 84. 1895, 23 R. 102. 
 
 Edingtons v. Astley, 1829, 8 S. Rottenberg v. Duncan, 1896, 24 
 
 192. R. 35. 
 
 Burns r. Burns, 1862, 34 Jur. Kennedy v. Clyde Shipping 
 
 426. Company, 1908, S.C. 895. 
 Davie v. Barclay, 1871, 9 M. 
 
 726. 
 
 4. Decree in foeo. 
 
 604. A decree granted after both parties have been heard, 
 and where both have been represented in the course of the 
 process, is a judgment on the merits, and, in the strictest sense, 
 a judgment in foro; but, in practice and in judicial statistics, 
 the expression decree in foro receives a wider interpretation, 
 and every decree which is the final pronouncement, within 
 his sphere, of the Sheriff-Substitute or the Sheriff, as the 
 case may be, upon a case to which he has applied his own 
 mind, is a decree in foro, as distinguished from a decree in 
 absence, which is granted where the defender does not answer 
 at all, as matter of course.
 
 260 J UDGMENT. 
 
 5. Decree by Default. 
 
 605. Where a process is not followed out to n conclusion 
 on the merits, but, in the course of it, one party fails to 
 prosecute his side of the litigation, the other party becomes 
 entitled to decree, and tin's is in practice termed a decree by 
 default. Such a decree can, of course, be granted only in a 
 defended cause, but it may be granted either in a summary 
 cause process, or an ordinary action process, the defaulting 
 provisions of the Sheriff Courts Act, 1907, being applicable to 
 both. 
 
 Appendix, Rule 56. Lord Brooke v. Marquis of 
 
 7 Ed. VII. c. 51, Sch. I., Rule Huntly, 1911, 49 S.L.R. 71. 
 
 56. 
 
 606. A judgment by default may be pronounced at any 
 time after appearance has been made by or for the defender, 
 that is to say, at any time after the action has become a 
 defended cause, and so the granting of decree in absence has 
 become incompetent. Keponing is not a competent remedy 
 for any failure of a defender who has once appeared, because 
 reponing applies only to a decree in absence, and a decree 
 by default is not a decree in absence. Although it may be 
 pronounced in the absence of the other party from an appointed 
 diet, it is nevertheless a decree in foro. 
 
 Appendix, Rule 56. 
 
 607. A decree by default is also a final judgment which the 
 Sheriff at his own hand cannot alter, although an Appellate 
 Court might in effect repone the defender, by recalling the 
 decree and remitting the cause back, if the circumstances 
 warrant that being done, and upon conditions as to expenses. 
 
 Appendix, Rule 56. M'Carthy v. Emery, 1897, 24 R. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 610. 
 
 56. Brown's Trustees v. Milne, 1897, 
 
 Young v. Mackenzie, 1859, 21 D. 24 R. 1139. 
 
 1358. Bain v. Lawson, 1899, 1 F. 576. 
 
 Forest v. Dunlop, 1875, 3 R. 15. Motherwell Commissioners v. 
 
 Stevenson v. Hutchison, 1885, Lanark County Council, 1901, 
 
 12 R. 923. 4 F. 151. 
 
 608. A technical difficulty as to Rule 56 has been suggested, 
 as regards a summary cause, arising upon the phraseology 
 of the rule. One of the situations in which decree by default
 
 DECREE BY DEFAULT. 261 
 
 is contemplated is whore a party "fails to appear by himself 
 " or his agent at any diet." This, in a summary cause, might 
 be read to include the first diet, when the case is called, and 
 the defender is required to answer. But the rule, read as a 
 whole, obviously refers to a diet other than one at which it 
 may be competent for a pursuer to move for a decree in absence, 
 so that, if a defender in a summary cause fails to answer at all 
 at the first calling, the proper form of decree is a decree in 
 absence. If, however, the defender does answer, but fails to 
 state a defence, the form of decree will be a decree by default- 
 On the other hand, in a summary cause, if the defender 
 answers at the first diet, and the pursuer fails to appear, the 
 defender's remedy is to crave protestation under Rule 36, not to 
 crave decree by default under Rule 56. The distinction 
 between a decree in absence and a decree by default is not of 
 much moment in a summary cause, for either decree is extract- 
 able in seven days. It is, however, of some consequence in an 
 ordinary action, for the decree in absence is extractable after 
 the lapse of seven days, and the decree by default not till after 
 the lapse of fourteen days, unless the Sheriff shortens the 
 period. 
 
 Appendix, Rules 24, 36, 56, 85. 7 Ed. VII. c. 51, Sen. I., Rules 
 
 24, 36, 56, 85. 
 
 609. The Sheriff Courts Act, 1907, enlarged the area of 
 circumstances in which decree by default may be granted. 
 Under the older practice, if a party failed timeously to lodge 
 pleadings, or to obtemper an order of Court, the party not in 
 default might enrol the case for protestation, or circumduction 
 and the Sheriff might grant decree or absolvitor, " or 
 allow a proof or otherwise dispose of the case." The 
 Sheriff Court Act of 1853 introduced, as a statutory term, a 
 judgment " by default," which was limited, however, to the 
 case of failure to lodge papers within the statutory periods. 
 The Act of 1876 broadened the decree by default to cover also 
 the non-appearance of parties at any diet in the cause. The 
 Act of 1907 still further broadened it to include non-lodging 
 of productions, non-implement of orders, or non-payment of 
 Court dues, or non-payment of shorthand writer's fees, after 
 the Court has made a peremptory order for payment or 
 consignation thereof. The circumstances in which decree by 
 default may now be craved, therefore, include (a) non-appear-
 
 262 JUDGMENT. 
 
 ance at any diet other than the first calling; (b) failure to 
 lodge pleadings or productions, as required by statute, or 
 ordered by the Court; (c) failure to implement any order of 
 Court : {<!) failure to make payment of Court dues, &c. 
 
 Appendix, Rules 56, 67. 7 Ed. VII. c. 51, s. 33, Sch. 
 
 16 & 17 Vict. c. 80, s. 6. I., Rules 56, 67. 
 
 39 & 40 Vict. c. 70, s. 20. Act of Sederunt, 1839, s. 59. 
 
 610. The granting of a decree by default iu respect of 
 failure to lodge pleadings, under the Act of 1853, was a 
 peremptory direction, with a saving proviso that, if "it shall 
 "be made to appear to his satisfaction that the failure to lodge 
 " such paper arose from unavoidable or 7'casonable causes," 
 the Sheriff might allow the delayed paper to be received, under 
 an expenses condition, and might also prorogate the statutory 
 periods for lodging papers. The Sheriff Courts Act, 1907, 
 is not imperative, but discretionary, as regards granting 
 decree by default. Although a party has made himself liable 
 to decree by default, such decree need not necessarily be 
 pronounced. That is in the discretion of the Sheriff. The 
 following courses are open to the Sheriff: — (a) To grant 
 decree as craved, or of absolvitor; (b) to dismiss the action; 
 (c) to prorogate the time for lodging the late papers or for 
 implementing the unfulfilled orders of Court; (d) to afford the 
 defaulting party another opportunity of making the appearance 
 which he has failed to make at a diet. 
 
 Appendix, Rule 56. M'Nab v. Nelsons, 1909, S.C. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 1102. 
 
 56. 
 
 611. A remarkable instance of the tendency of the judicial 
 mind to give a narrow, rather than a broad, interpretation to 
 a statute, is afforded by the conflicting views taken of the 
 intention of Rule 50 of the Sheriff Courts Act, 1907. Plain 
 as that rule is, there was put upon it the interpretation that, 
 because it does not in express words say that the Sheriff may 
 " receive " a late paper, and because, as was suggested, the 
 word "prorogate" had no meaning after the time for lodging 
 a late paper has passed, the rule did not authorise the reception 
 of a paper tendered late, and accordingly that it was not com- 
 petent to receive papers late, unless a motion to prorogate the 
 time had been made before the expiry of the statutory time. 
 Such a reading, besides rendering Rule 56 inoperative in the
 
 DECREE BY DEFAULT. 263 
 
 very circumstances where it is wanted, is altogether opposed 
 to the whole scope and intention of this statute, which obviously 
 is to free Sheriff Court procedure from hampering restrictions, 
 and to invest the Sheriff with a large discretion in the conduct 
 of every process in his Court. 
 
 612. The word " prorogate " has long been recognised as 
 a legal term, meaning to extend, and it is plainly used in this 
 rule in its ordinary meaning, the evident intention of the 
 statute being that the Sheriff may refrain from granting a 
 decree by default, and may, instead of so doing, extend the 
 time for doing what had been omitted to be done by the 
 defaulting party. Thus, if defences have not been 
 lodged within the statutory time, or an order of Court has 
 not been implemented within the time stated in an inter- 
 locutor, the Sheriff is not tied down to granting decree by 
 default, any more than he is restricted to that course where a 
 party has failed to attend a diet. In such case, the granting 
 of decree by default is amongst the alternative courses this rule 
 provides, but it is not the sole peremptory direction of the 
 statute. After various conflicting decisions in the Sheriff 
 Court, this view has been given effect to by the Supreme Court. 
 
 Appendix, Rule 56. Cuthbertson v. Todd, 1908, 24 
 
 6 Geo. IV. c. 120, s. 12. S.C.R. 378. 
 
 7 Ed. VII. c. 51, Sch. 1., Rule Lawrence v. Gray, 1908, 25 
 56. S.C.R. 19. 
 
 Weild v. Weild, 1827, 6 S. 247. Brown v. Cormack, 1909, 1 
 
 Nicol v. Johnston, 1888, 26 S.L.T. 247. 
 
 SLR 61. M'Nab v. Nelsons, 1909, S.C 
 
 Davies v. Blake, 1908, 16 S.L.T. 1102. 
 
 262.
 
 CHAPTER XII. 
 
 OPERATING JUDGMENT. 
 
 1. Extract. 
 
 613. The foundation for diligence in execution of a decree 
 of Court is an extract of the judgment, containing the warrant 
 for execution, and as regards the form of extract, there is no 
 difference between a summary cause and an ordinary action, 
 although there is a difference as regards the time in which 
 extract may be obtained. 
 
 Appendix, Rule 85. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 85. 
 
 614. Extracting a final judgment is the official closing of 
 the process. After extract, no further step can be taken, 
 and reference to oath is not competent. Neither can the 
 decree be corrected or altered, for the process is no longer 
 depending. Accordingly, if it is desired to supersede extract 
 for a certain time, that must be expressed in the decree before 
 it becomes final, for the Sheriff has no power to stay execution 
 upon a final decree which has been extracted. 
 
 615. The time within which an extract may be demanded, 
 as provided in the Sheriff Courts Act, 1907, is (a) 
 for an extract of a decree in absence, whether in a summary 
 cause or an ordinary action, seven days ; (b) for any extract 
 in a summary cause, seven days ; (c) for any extract in an 
 ordinary action, fourteen days; (d) for an extract of a decree 
 for expenses, whether in a summary cause or an ordinary 
 action, seven days. 
 
 Appendix, Rules 24, 85, 98. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 24, 85, 98. 
 
 616. The time for extract in all cases counts from the
 
 EXTRACT. 265 
 
 date of the interlocutor, that is, from the date upon which 
 it is entered in the Court books, and the days which must 
 elapse are clear days. The Sheriff has power to shorten, but 
 not to extend, the normal time for extract. II e may indirectly 
 extend the time by superseding extract, or making I lie issue of 
 extract conditional upon caution beint: found; but conditions 
 of this sort are not alterations of the statutory extract time, 
 but rather part of the decree. 
 
 Thomson v. Duncan, 1855, 17 Simpson v. Jack, 1888, 16 R. 
 
 D. 1081. 131. 
 
 617. A question has been raised upon Rule 85 of the Sheriff 
 
 Courts Act, 1907, as to whether that has excluded the power 
 
 of shortening extract as regards a summary cause. It is 
 
 thought that it has not. As the rule is punctuated possibly 
 
 as regards a summary cause, the lapse of seven days before 
 
 extract might be read as a peremptory direction. The use of 
 
 a semicolon after "seven days" might appear to countenance 
 
 the reading that, as regards shortening the period, a distinction 
 
 is intended to be created between a "summary cause" in the 
 
 first part of the rule, and " any other cause " in the second 
 
 part. But to so read it would be to abrogate a power which 
 
 the Sheriff has always had, and has been accustomed to 
 
 exercise, of shortening the extract period. Unless that power 
 
 is taken away by very express words, it is not to be 
 
 presumed to be abrogated, merely because a printer happens 
 
 to have misplaced a semicolon in a printed rule. In 
 
 construing statutes, punctuation marks are not regarded, and 
 
 if all punctuation marks in this rule are disregarded, and it is 
 
 read as a whole, in the light of the previously existing practice, 
 
 it seems clear that the power of shortening extract is not 
 
 altered, but that it applies to all extracts, whether in a 
 
 summary cause or in an ordinary action. 
 
 Appendix, Rule 85. 7 Va\. VII. c. 51, Sch. I., Rule 
 
 11 85. 
 
 618. The extract of a decree for a money payment will 
 include interest at 5 per cent., unless any other rate has been 
 expressly allowed in the decree, which in special circumstances 
 it may be. Interest is generally decerned for as from the date 
 of citation, if interest has been craved in the initial writ. If 
 it is not decerned for at all, interest will run only from the
 
 266 OPERATING JUDGMENT. 
 
 date of the decree. A decree for expenses is deemed to include 
 the extract dues. 
 
 Appendix, Rule 98. Wallace v. Henderson, 1876, 4 
 
 55 & 56 Vict. c. 17, s. 9. R. 264. 
 
 7 Ed. Yli. c. 51, Sch. I., Rule Campbell's Executor v. Camp- 
 
 98. bell's Trustees, 1898, 25 R. 
 
 687. 
 
 2. Registration Decree. 
 
 619. The warrant for executing diligence is not necessarily 
 an extract of a decree, pronounced after steps of procedure, in 
 a process commenced by an initial writ in the Form A of the 
 1913 Act. Any writ containing a clause of registration for 
 execution may be recorded in the books of Court, and an extract 
 is, for purposes of diligence, equivalent to au extract following 
 upon a decree of Court. So also sums due under bills of 
 exchange or promissory notes need not necessarily be sued 
 for in an action, and are not commonly sued for, unless the 
 bill has not been timeously presented and noted for non- 
 payment. If it has been, then the much more expeditious 
 mode is to record the notarial protest ; and an extract registered 
 protest warrants diligence to the same effect as an extract 
 proceeding upon a decree pronounced in an action. 
 
 40 & 41 Vict. c. 40. 
 
 620. Similarly, under the Workmen's Compensation Act, 
 a memorandum of agreement, when recorded, is a decree of 
 Court, or at least, for diligence purposes, has all the force and 
 effect of a decree of Court. 
 
 6 Ed. VII. c. 58, Sch. II., s. 9. 
 
 ■j. Charge. 
 
 621. Before diligence can be done upon an extract decree 
 a party decerned against must be formally charged to imple- 
 ment the decree of Court (except in a Small Debt cause, where 
 the defender was present when decree was pronounced). The 
 person in whose name a charge may be given is not necessarily 
 the person who is the named creditor in the decree. A charge 
 is valid only at the instance of the person who is at the moment 
 in right of the decree. It may be given accordingly by any 
 person in right of the decree, as an assignee, or trustee in
 
 CHARGE. 2 1 
 
 bankruptcy, or executor. If the charge is to be given at the 
 instance of a person other thai) the person aamed in the d< i 
 the Debtors (Scotland) Act of 1838 directs the procedure. The 
 party in right of the extract endorses a minute upon the 
 extract, setting forth his title, and, upon the Sheriff-clerk 
 endorsing the extract, it becomes operative al the instance 
 of such third person. Such a creditor may charge, although 
 he is a foreigner, without a mandatory, but if the charge is 
 suspended, he must sist a mandatory in the suspension process. 
 
 1 & 2 Vict. c. 114. s. 12. Chambers v. Chambers, 1839, 1 
 
 53 & 54 Via. c. 39, s. 4 (2). D. 911. 
 
 Ros 31 ., 1849, 11 D. 984. 
 
 622. A charge must be executed by an officer, except in the 
 case of a Small Debt decree for payment of money, whore the 
 place of execution of charge is more than twelve miles distant 
 from the seat of the Court which granted the decree. In this 
 event, the charge may be given in the inanner prescribed by 
 the Citation Amendment Act of 1882, that is to say, by an 
 officer or a law agent by postal registered letter. This innova- 
 tion made by the Sheriff Courts Act, 1907, assumes considerable 
 importance when it is remembered that the jurisdiction clauses 
 of that statute are made applicable to the Small Debt Court, 
 and that a defender who resides at a distance from a Sheriff 
 Court may yet be subject to its jurisdiction, as owner of 
 heritable property within it, or because he carries on business 
 within it, or because the action relates to a contract the place 
 of execution of which is within the jurisdiction, or because the 
 defender is subject to the jurisdiction ex reconventione or ex 
 delicti. 
 
 Appendix, s. 49, Rules 10, 151. Gow v. Thomson, 1895 (J.C.), 1 
 
 7 Ed. VII. c. 51, s. 49. Adam 534. 
 
 623. The provision of the Sheriff Courts Act, 1907, abolish- 
 ing the endorsation of warrants of citation executed bevond 
 the jurisdiction of the Court which granted the warrant, does 
 not extend to a charge, nor does the other provision as to 
 citation being made either by an officer of the Court granting 
 the warrant, or of the jurisdiction where it is to be executed. 
 If, therefore, a charge has to be executed in another sheriffdom. 
 it is still necessary to obtain the extract endorsed by the Sheriff- 
 clerk of that sheriffdom, and it is still requisite that the 
 charge be given by an officer of that sheriffdom. The extract
 
 268 OPERATING JUDGMENT. 
 
 is presented to the Sheriff-clerk with a minute endorsed 
 craving concurrence, and this having been endorsed upon it 
 by the Sheriff-clerk, the extract then becomes operative for 
 diligence to the like effect, as if it had been issued in the 
 sheriffdom where it is to be executed. 
 
 Appendix, Rules 10, 151. 1 & 2 Vict. c. 114, s. 13. 
 
 624. The officer executing a charge must be accompanied 
 by at least one witness, who subscribes the execution of charge 
 along with the officer. A charge may be given in any of the 
 ways in which a writ may be served (except that it cannot be 
 sent through the post unless in a special Small Debt case 
 before referred to), and the execution should set forth the 
 manner of charge. In the case of a charge, it is peculiarly 
 desirable that the party to be charged should be found per- 
 sonally ; but, if that is not possible, then the other recognised 
 modes may suffice. If a charge is invalid, the whole subse- 
 quent diligence may be inoperative. There is, therefore, no 
 part of the execution of diligence where it is more essential 
 that great care should be exercised. A trifling error in an 
 execution of charge will not invalidate it: but if a material 
 error occurs, the charge should be withdrawn, by letter 
 addressed to the debtor,, and a fresh charge should be given. 
 
 1 & 2 Vict. c. 114, s. 32. Clark v. Hamilton, 1875, 3 R. 
 
 Henderson v. Rollo, &c, 1871, 166. 
 
 10 M. 104. 
 
 625. A company, corporation, association, or firm, or a 
 board, corporate or unincorporate, may be charged, as they may 
 be cited, under their nominate or descriptive name. A decree 
 against a firm is a warrant to charge each partner. If there 
 is any statutory enactment requiring any corporation or board 
 or society to be cited in a particular manner, the same direction 
 will apply to charge; but, in the absence of such special 
 direction, the usual methods will be adopted, whether the body 
 to be charged is a public or private corporation. 
 
 Appendix. Rules 11, 151. 7 Ed. VII. c. 51, s. 49, Sch. I., 
 
 1 Vict. c. 114, s. 32. Rules 11, 115. 
 
 53 & 54 Vict. c. 39, s. 4 (2). 2 & 3 Geo. V. c. 28, Sch. II. 
 
 626. The provision of the Sheriff Courts Act, 1907, which 
 bars a person who has appeared from challenging the validity 
 of citation, does not apply to execution of diligence, for defect
 
 CHARGE. 269 
 
 in diligence is strictly regarded, and any materia] error is 
 fatal. An execution, however, if ex facie regular, is presump- 
 tive evidence of the fact and manner of execution, and of the 
 fact that the defender has been charged, and this presumption 
 rules till the execution is reduced. If the objection is patent, 
 as, for instance, the execution is disconform to the warrant, 
 such objection may be pleaded in a suspension process, and 
 proof may be unnecessary. But if proof is required to set up 
 the invalidity of a charge, a process of reduction may be 
 necessary. 
 
 Appendix, Rules 13, 50. Stewart v. Macdonald, 1860, 22 
 
 7 Ed. VII. c. 51, Sch. I., Rules D. 1514. 
 
 13, 50. Scott v. Cook, 1886, 24 S.L.R. 
 
 34. 
 
 G27. The charge must be dated, and the days of charge 
 must conform to the warrant. Where several persons are 
 charged, the execution should state the date upon which each 
 was charged. The execution upon an extract decree for payment 
 of money certiorates the debtor that, if he fail to obey the 
 charge, recovery may be made by poinding and arrestment 
 and imprisonment if competent. The execution upon a decree 
 other than for payment of money is under the pain of imprison- 
 ment, or in a removing process under pain of ejectment. 
 
 1 & 2 Vict. c. 114, Sch. II. Beattie v. M'Lellan, 1844, 6 D. 
 
 55 & 56 Vict. c. 17, s. 1. 1088. 
 
 Graham v. Bell, 1875, 2 R. 972. 
 
 628. The Sheriff Courts Act, 1907, does not, as the 1876 
 Act did, prescribe the days of charge. But the Extracts Act 
 of 1892 requires seven days. If executed edictally, which is 
 competent when the debtor is furth of Scotland, a charge is 
 upon fourteen days' induciae, and the execution must bear 
 that a copy of the charge has been posted to any known 
 address of the party charged, if he has a residence or place of 
 business in England or Ireland. The Sheriff has no power 
 to shorten the inducise of charge. 
 
 Appendix, Rule 15. 55 & 56 Vict. c. 17, s. 7 (6). 
 
 1 & 2 Vict. c. 114. s. 13-32. 7 Ed. VII. c. 51, Sch. I., Rule 
 9 & 10 Vict. c. 67. s. 1. 15. 
 
 39 & 40 Vict. c. 70, s. 8. 
 
 629. Registration of an expired charge in the Register of 
 Homing's has the effect of accumulating the debt and interest
 
 270 OPERATING JUDGMENT. 
 
 into one capita] sum, upon which interest runs from the date 
 of registration. 
 
 1 & 2 Vict. c. 114. s. 5. 
 
 I. Arrestment. 
 
 630. Arrestment is the competent diligence for the attach- 
 ment of a debtor's moveable property which is in the custody 
 of a third party. If it is in defender's own custody, poinding 
 is the appropriate diligence. To this general rule there is one 
 statutory exception under the Sale of Goods Act. The seller 
 of goods still in his custody, and unpaid, may arrest them in 
 his own hands for the price. The diligence against heritahle 
 property corresponding to arrestment of moveables is that of 
 inhibition. In both cases a debtor's property may be secured, 
 for the benefit of his creditor, before, as well as after, judg- 
 ment, arrestment before judgment being termed arrestment 
 on the dependence, and that after judgment arrestment in 
 execution. An extract of a Sheriff Court decree is itself a 
 statutory warrant for arrestment in execution. For arrest- 
 ment on the dependence a special warrant is required, but once 
 it has been executed it stands (provided the action has been 
 tabled and is pending) within the arrestment prescription 
 period. A warrant to arrest on the dependence is most com- 
 monly included in the first warrant of citation, but the writ 
 does not necessarily require to be served before arrestment can 
 be used. Indeed, very often the arrestment would be defeated 
 if not used before the service of the writ. The writ, however, 
 must be served within twenty-one days from the date of the 
 execution of an arrestment used prior to service, otherwise the 
 arrestment falls. The manner of execution is the same, 
 whether the arrestment is on the dependence or after 
 judgment. 
 
 Appendix, Rule 127. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 1 & 2 Vict. c. 114, s. 9. 127. 
 
 19 & 20 Vict. c. 60, s. 3. 2 & 3 Geo. V. c. 28, Sch. II. 
 56 & 57 Vict. c. 71, s. 40. 
 
 631. An arrestment upon a Sheriff Court warrant is com- 
 petent only within Scotland. The provision of the Debtors 
 (Scotland) Act, 1838, authorising arrestment edictally upon 
 an arrestee furth of Scotland, applies only to a Court of 
 Session warrant. Formerly a warrant to arrest on the
 
 ARRESTMENT. 271 
 
 dependence, or a precept of arrest ment , if executed in another 
 sheriffdom, required first to be endorsed by the Sheriff-clerk 
 of that sheriffdom, and was executed by an officer of thai 
 sheriffdom, but under the Sheriff Courts Act, 1907, such a 
 warrant may be executed in any sheriffdom without endorsa- 
 tion, and may be executed by an officer cither of the sheriffdom 
 where the warrant was granted, or of thai where it is to be 
 executed. 
 
 Appendix, Rule 10. 7 Ed. \ II. c. 51, Sch. I., s. 10. 
 
 1 & 2 Vict. c. 114, s. 16-18. 
 
 G32. The Sheriff Courts Act, 1907, does not affect the 
 previous practice as regards arrestment in execution. Endorsa- 
 tion is still necessary, when the arrestment follows upon a 
 decree of Court, which has to be executed within a sheriffdom 
 other than that in which it was pronounced. It is perhaps 
 somewhat incongruous that endorsation should be dispensed 
 witli where the authority to arrest has been granted upon a 
 mere ex parte statement in an initial writ that a debt is due, 
 or upon production of a bill said to be past due and unpaid, 
 and yet that endorsement of the warrant to arrest should remain 
 necessary when the arrestment warrant is a formal decree of 
 Court; but that appears to be the result of the legislation, the 
 view of the Legislature apparently being that arrestmenl in 
 execution is a matter in which the concurrence of the local 
 Court should still be obtained. 
 
 Appendix. Rule 10. 7 Ed. VII. c. 51. Sch. I., Rule 
 
 1 £ 2 Vict. c. 114, s. 9. 18, 19. 10. 
 
 55 & 56 Vict. c. 17, s. 7 (1). 
 
 633. An arrestment may, as formerly, proceed upon a 
 precept issued in the Sheriff Court, the procedure in regard 
 thereto not being affected by the Sheriff Courts Acts, 1907- 
 1913, which, indeed, expressly reserve the former practice by 
 providing that " % separate precepts of arrestment may be issued 
 " by the Sheriff-clerk upon production to him of a writ con- 
 " taining pecuniary conclusions upon which a warrant of 
 " citation has been granted, or of a liquid document of debt.*' 
 It is not necessary to present an initial writ formally craving 
 a precept of arrestment. Production to the Sheriff-clerk of 
 the requisite grounds is sufficient. The production of a writ 
 with pecuniary conclusions, and with warrant of citation 
 thereon is, of course, necessary only in the exceptional case
 
 272 OPERATING JUDGMENT. 
 
 where, in the crave of the initial writ, a warrant to arrest on 
 the dependence lias been inadvertently omitted. If a warrant 
 to arrest is craved, it will be included in the warrant of citation, 
 in which case there is, of course, no need for a separate precept, 
 which in practice is applied for only where a ground of debt 
 exists, but a writ has not yet been applied for, or is not 
 necessary, as, for instance, a claim founded upon a bond or 
 bill, upon which a decree of registration may be obtained. 
 
 Appendix, Rule 46. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 45. 
 
 634. Neither under a warrant to arrest on tlie dependence, 
 nor upon a separate precept, is arrestment on the dependence 
 competent unless in respect of a money claim (other than 
 expenses), but it is enough that a money claim exists, although 
 it may be only alternative or subsidiary to some other claim 
 or demand. It is not competent, for instance, to crave warrant 
 to arrest on the dependence, where the claim is for declarator 
 or delivery alone, but if a money craving is conjoined arrest- 
 ment may be competent. So also arrestment may be competent 
 upon the dependence of an action of count and reckoning, if 
 there is also a conclusion for a money payment, but in general 
 a warrant to arrest on the dependence is not granted upon 
 contingent, or consistorial, claims, unless it is averred that 
 the defender is vergens ad inopiam or in meditatione fugoe. A 
 precept of arrestment will be issued only in respect of a 
 specific existing debt against a specified debtor, and the 
 precept should disclose the grounds of debt. 
 
 Appendix, Rule 46. Burns v. Burns, 1879, 7 R. 355. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Mackenzie v. Ferier, 1900, 7 
 
 45. S.L.T. 316. 
 
 Ketchen v. Grant, 1871, 9 M. Ellison v. Ellison, 1901, 4 F. 
 
 966. 257. 
 
 Stafford v. M'Laurin, 1875, 3 R. Johnston v. Johnston, 1910, 26 
 
 148. S.C.R. 134. 
 Symington v. Symington, 1875, 
 
 3 R. 205. 
 
 635. The question has been raised whether a precept of 
 arrestment may be competently issued by the Sheriff-clerk to a 
 defender, upon defences being lodged stating a counter claim, 
 under Rule 55, which empowers the Sheriff to deal with the 
 counter claim, " as if it had been stated in a substantive 
 " action." But that does not empower the Sheriff-clerk to 
 issue a precept of arrestment, for Rule 46 only authorises a 
 precept to be issued upon production of a writ, or of a liquid
 
 ARRESTMENT. 273 
 
 document of debt. A statement of counter claim by way of 
 
 defences in a process is neither a wiii nor a liquid document 
 
 of debt, in the sense of Rule 40. If the defender has a counter 
 
 claim, and desires to arrest upon it, his course is to state his 
 
 claim in a substantive action, and to get in that action a 
 
 warrant to arresl . 
 
 Appendix, Rules 46. 55. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 45, 55. 
 
 636. Arrestment must be executed by an officer, for the 
 
 Citation Amendment Act, 1882, does not apply to arrestment. 
 
 If possible, the schedule of arrestment should be delivered to 
 
 the arrestee personally. If it is not, then the 1907 Act directs 
 
 that "it shall be necessary to make the arrestment effectual 
 
 "that a copy of the schedule be also sent by postal registered 
 
 "letter to the last known place of abode of the arrestee, or if 
 
 "such place of abode is unknown, or if the arrestee is a linn 
 
 "or corporation, to the arrestee's principal place of business 
 
 " if known, or if not known to any known place of business 
 
 " of the arrestee, and the officer shall in his execution certify 
 
 "that this has been done, and specify the said address." The 
 
 execution is sufficient if expressed in general terms, but if 
 
 any specific fund or subject is known to be in the arrestee's 
 
 hands, and it is desired to attach that, there should be added 
 
 to the general schedule of arrestment " and particularly," with 
 
 a description of such special fund or subject. 
 
 Appendix, Rules 126, 127. Metzenburg v. Highland Rail- 
 
 39 & 40 Vict. c. 70, s. 12 (5). way Company, 1869, 7 M. 919. 
 
 55 & 56 Vict. c. 77. Glasgow Corporation v. Camp- 
 
 7 Ed. VII. c. 51, Sch. I., Rules bell and Others, 1898, 25 R. 
 
 126, 127. 690. 
 
 637. In the case of a corporation, an arrestment is properly 
 
 served if left with a recognised official at the corporation's 
 
 place of business; but, as there might be a question as to 
 
 whether it had been served personally, and as the 1907 rule 
 
 specially mentions a corporation (which the corresponding rule 
 
 of the 1876 Act did not), it will always be a safe precaution 
 
 also to post a copy addressed to the corporation at its principal 
 
 place of business. 
 
 Appendix, Rules 126. Glasgow Corporation v. Camp- 
 
 39 & 40 Vict. c. 70, s. 12 (5). bell and Others, 1898, 25 R. 
 
 Sharp & Fairlie v. Garden, 1822, 690. 
 
 1 S. 337. Macintyre V. Caledonian Rail- 
 
 way Company, 1909, 25 S.C.R. 
 329. 
 
 18
 
 274 OPERATING JUDGMENT. 
 
 G38. Under Rule 127 of the Sheriff Courts Act, 1907, which 
 directed an arrestment on the dependence to he reported, doubt 
 was created as to what executions of arrestments required to be 
 reported to the Sheriff-clerk. The amendment of this rule 
 made by the Act of 1913 makes it clear that this direction 
 applies only to an arrestment on the dependence which has 
 been used prior to service of the action. 
 
 Appendix, Rule 127. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 45 & 46 Vict. c. 77. Johnston v. Johnston, 1910, 26 
 
 7 Ed. VII. c. 51, Sch. I., Rule S.C.R. 134. 
 
 127. 
 
 639. An arrestment prescribes in three years. In the case 
 of arrestment in execution of decrees, whether of registration 
 or constitution, the three years run from the date of execution 
 of arrestment; in the case of arrestment on the dependence, 
 from the date of the final decree in the cause; and, when the 
 arrestment is used upon a future or contingent debt, from the 
 date the debt becomes due, or the contingency is purified. 
 Arrestments used under the Small Debt Acts prescribe in three 
 months. 
 
 1669, s: 9. 1 & 2 Vict. c. 114, s. 22. 
 
 1 Vict. c. 41, s. 6. 
 
 640. Section 127 of the Sheriff Courts Act, 1907, was not 
 happily expressed, and, if read literally, would have defeated 
 arrestments used on the dependence in the case of actions served 
 edictally, or brought in the Courts of Orkney and Shetland 
 and the other islands of Scotland, because such an action, 
 served upon a fourteen days' induciop, could not possibly be 
 "tabled within fourteen days after service." The rule as now 
 amended by the 1913 Act preserves an arrestment used prior 
 to service for twenty days, till the action has been served. 
 
 Appendix, Rule 127. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 127. 
 
 641. An arrestment may be recalled or restricted by the 
 Sheriff who granted the warrant, with or without caution, or 
 upon consignation. As a general rule, the expense of laying 
 on or recalling arrestments falls upon the party using, or apply- 
 ing for recall. It is not uncommon, of consent, when arrest- 
 ment on the dependence has been used after an action is in 
 progress, to recall the arrestment on consignation, upon motion
 
 ARUKSTMKXT. 275 
 
 of a party, but this is not strictly correcl procedure, for 
 recall of arrestment is a distinct process in itself, with a spi 
 appeal. Recall of arrestmenl i- frequently desired also b< 
 
 a writ has been served, and when as yet there is no pr< 
 in which to make a motion. The procedure is regulated by the 
 Debtors (Scotland) Act, L838. The recall process, bei 
 civil proceeding in the Sheriff Court, is commenced by initial 
 writ, and the application is directed to be disposed of sum- 
 marily. The judgment is subject to review by the Court of 
 Session. There is no intermediate appeal from the Sheriff- 
 Substitute to the Sheriff, in a process for recall of arrestments. 
 
 1 & 2 Vict c. 114, s. 21. Mair v. United Collieries, 1908, 
 
 Roy v. Turner, 1891, 18 R. 717. S.C. 768. 
 
 642. An application for recall of arrestments is not com- 
 petent at the instance of a third party, who alleges that the 
 arrested fund or subject belongs to him. The proper course 
 for such party is to bring a multiplepoinding process. 
 
 Dampskibselskabet Nordsoen v. Mackie, Koth, & Co. (1910), 
 1911, S.C. 172. 
 
 643. The validity of an arrestment is determined by the 
 lex loci sitce. An application for recall is competent at the 
 instance of any party in the cause against whom arrestment 
 has been used, but it is not competent for the arrestee to seek 
 recall. The validity of an arrestment itself is a matter for 
 determination in a furthcoming process. Under an application 
 for recall the Court will consider only (1) whether there was 
 a warrant for using arrestments at all ; and (2) if so, whether 
 caution should be made a condition of recall. 
 
 Vincent v. Chalmers' Trustees, Inglis v. Robertson & Baxter, 
 
 1877, 5 R. 43. 1898, 25 R. (H.L.) 70. 
 
 Royal Bank v. Securities Invest- 
 ment Co., 1897, 4 S.L.T. 232. 
 
 644. An arrestment used on the dependence of an action, 
 of course, falls w-ith the action, but it does not necessarily fall 
 merely because the Sheriff who granted the warrant afterwards 
 does not entertain the action, for in that event the action itself 
 does not necessarily fall. It may be transferred to another 
 sheriffdom, and proceed in all respects there as if it had been 
 originally brought there. Accordingly when an action is 
 transferred to another sheriffdom, the arrestments which have
 
 27G OPERATING JUDGMENT. 
 
 been used on the dependence stand, for, in the absence of 
 statutory direction to the contrary, an arrestment stands for 
 three years, unless it is withdrawn, or recalled, or the action 
 upon which it is used is dismissed. 
 
 Appendix, Rules 19-21. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 19-21. 
 
 045. A warrant or precept of arrestment authorises arrest- 
 ment in the hands of the arrestee only of money which is 
 presently due to, or goods the property title to which is 
 presently in, the debtor, and the execution must bear that 
 the subject arrested belongs to defender. What is carried by 
 an arrestment is only what is in the arrestee's hands at the 
 moment the schedule is served upon him, and arrestments are 
 preferable in the order of service. An arrestment, the execu- 
 tion wherein sets forth that it was used within certain hours 
 upon a date, may take precedence of one used on the same date, 
 but without mention of hours. 
 
 M'Donald v. Wingate, 1825, 3 Marshall v. Robertson, 1905, 21 
 
 S 494. S.C.R. 243. 
 
 Hertz v. Itzig, 1865, 3 M. 813. 
 
 G46. Alimentary funds are not arrestable except for 
 
 personal alimentary debts, and even then only if the fund 
 
 exceeds what is reasonably necessary for aliment. In general, 
 
 allowances not assignable are not arrestable, but this is not an 
 
 invariable rule, and it is always a question of circumstances 
 
 whether emoluments by way of salary, pension, or annuity, 
 
 are arrestable. In the case of Crown salaries and pensions. 
 
 annuities to clergymen's widows, ministers' stipends, and the 
 
 like, the general rule is that any surplus beyond what is 
 
 reasonably necessary for maintenance is arrestable for an 
 
 alimentary debt. Wages are likewise regarded as alimentary, 
 
 and not arrestable unless as regards surplus. The Wages 
 
 Arrestment Limitation (Scotland) Act of 1870 protects from 
 
 arrestment on the dependence, except as regards the surplus 
 
 over twenty shillings per week, the earnings of " labourers, 
 
 " farm servants, manufacturers, artificers, and workpeople," 
 
 but such earnings may be arrested in execution of a decree 
 
 for an alimentary debt, or for rates and taxes. A workman's 
 
 tools are not arrestable. 
 
 17 Geo. II. c. 11, s. 68. 33 & 34 Vict. c. 63. 
 
 19 Geo. III. c. 20, s. 78, Ersk. III. 6, 7, IV. 3, 27.
 
 ARRESTMENT. -7 7 
 
 647. A fund which has been earmarked, and sel aside for a 
 
 special purpose, may not be arrested so as to defeat thai pur- 
 pose. Thus money consigned in the hands of the Clerk of Courl 
 may not be arrested so as to defeal the objed of the consigna- 
 tion. If, however, the party to meet whose alleged claim the 
 
 consignation was made be found not entitled to it, or it ;i 
 surplus remain after satisfying liis claim, the fund, or the 
 surplus, is available to other creditors of the party whose 
 money was consigned. But the consignor himself, after 
 the other party has obtained decree, is not entitled to prevent 
 the consigned fund reaching him, by arresting it upon an 
 alleged separate claim against the other party. 
 
 Pollock v. Scott, 1844, 6 D. British Linen Bank v. Kansas 
 
 1297. Investment Company, 1895, 3 
 
 Campbell v. Lothians, 1858, 21 S.L.T. 138. 
 
 D. 63. Brown v. Port Seton Harbour 
 
 Commissioners, 1899, 1 F. 373. 
 
 648. Rent is arrestable, but only as regards arrears and 
 the current term's rent. Future payments not yet prestable 
 are not arrestable. An arrestment used during the currency 
 of a term attaches the rent of that term, even if, by private 
 agreement between the landlord and tenant, payment may not 
 be required to be made till after the legal term. 
 
 Wright v. Cunningham, 1802, 15 Smith v. Burns, 1847, 9 D. 1344. 
 
 Mor. 919. 
 
 649. Some funds are arrestable, although not presently 
 payable, if the debtor has a vested interest . Thus, a jus 
 crediti under a trust deed may be attached in the hands of a 
 trustee, although the estate has not yet been realised. If the 
 estate is held by a body of trustees, a schedule of arrestment 
 should be served upon each of them, or at least upon so many 
 of them as are declared by the deed of trust to be a quorum. 
 
 Kyle's Trustees v. Whyte, 1827, 6 S. 40. 
 
 650. An arrestment can competently be used only in the 
 hands of a direct debtor to the common debtor. An arrestment 
 for a debt due by a firm should be executed against the firm, 
 and, if possible, all the partners, not against one partner only. 
 If the arrestee has no liability to the common debtor, the 
 arrestment in his hands is inept. But it is sufficient that, in 
 principle, the arrestee is liable to account and pay to the
 
 278 OPERATING JUDGMENT. 
 
 common debtor, although the exact amount in which he is 
 Liahle has not at the moment been ascertained. In general, 
 arrestment is valid only if used in the hands of the actual 
 debtor to the common debtor; but in exceptional cases an 
 arrestment may be validly used in the hands of a representative 
 of the arrestee proper, as, for instance, a Commissioner 
 entrusted with the full management of one's affairs, or a tutor 
 or curator, or a person holding a power of attorney from one 
 abroad, or in some circumstances even a private trustee or a 
 law agent. But an arrestment in the hands of a bank agent 
 is inept. It should be executed against the bank itself. 
 
 Ersk. III. 4, 6. Ritchie v. Maclachlan, 1870, 8 
 
 Brown v. Blackie, 1850, 23 Jur. M. 815. 
 
 47. Hay v. Dafourcet, 1880, 7 R. 
 
 Learmont v. Shearer, 1866, 38 972. 
 
 j ur . 274. Burns v. Gillies, 1906, 8 F. 460. 
 
 Graham v. Macfarlane, 1869, 7 Carron Company v. Currie, 1896, 
 
 M. 640. 33 S.L.R. 578. 
 
 651. An arrestment on the dependence covers interest and 
 expenses, in the process in which the debt is sued for. For- 
 merly it did not cover the expenses of a process of furthcoming 
 to make good the arrested fund, but under the Sheriff Courts 
 Act of 1907 the arrested fund, if sufficient, may be made 
 available for this expense also. 
 
 Appendix, Rule 129. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 129. 
 
 652. An arrestee who, despite arrestment, pays money or 
 delivers property to the common debtor, is liable to the 
 arresting creditor in implement of his decree, when obtained, 
 but that only to the extent of the value arrested in his hands, 
 not to the full extent of the decree the creditor may obtain 
 against the common debtor. "When an arrestee has paid the 
 common debtor, after arrestment, the payment may be 
 challenged by a prior arrester. 
 
 Ersk 3, 6, 14. Wright v. Stewart, 1835, 13 S. 
 
 559. 
 
 653. The finding of caution, or making consigna- 
 tion, may be made a condition of recall. When an 
 arrestment is loosed on caution, the obligation of the 
 cautioner properly is that the arrested fund or sub- 
 ject shall be made forthcoming to the arrester, if he 
 obtain judgment. The more common and convenient form,
 
 ARRESTMENT. 279 
 
 however, in which the cautioner's obligation is expressed 
 
 is to pay the arrester such sum as he may obtain judgment for 
 
 against the principal debtor, to the extent of the arrested fund. 
 
 Only an arrestment on the dependence is, in the general case, 
 
 loosed on caution. An arrestment in execution, following a 
 
 decree, will not be loosed, except on satisfaction of the decree, 
 
 or where the decree is suspended. 
 
 Ersk. III. 6, 12. James v. James, 1886, 13 R. 
 
 Potter v. Bartholomew, 1847, 1153. 
 
 20 Jur. 18. Ellis v. Menzies, 1901, 9 S.L.T. 
 
 Law o. M'Dougall's Trustees, 204. 
 
 1864, 6 D. 68. 
 
 654. An arrestment in itself has no effect in transferring 
 the ownership of funds or property (except upon an Exchequer 
 decree). Its use is merely to preserve the property, to be avail- 
 able to the creditor if he obtain judgment against the common 
 debtor. But, to make it available to him, a separate process 
 is necessary, which takes the form of an action of furthcoming, 
 or, where there are competing arrestments, an action of 
 multiplepoinding. 
 
 19 & 20 Vict. c. 56, s. 30. Ersk. 3. 6, 14. 
 
 655. A ship, as a moveable subject, is attached by arrest- 
 ment, but the process is somewhat different from that of goods 
 or money. The schedule of arrestment is affixed to the ship's 
 mast, or upon the stern post, and, if there is any tear that 
 the ship may be removed, a warrant to dismantle should be 
 asked. An ordinary warrant authorising arrestment on the 
 dependence is sufficient for the arrestment, but not for the 
 dismantling of a ship, and an officer should be careful to see 
 that he has a warrant, as he and his cautioner may be liable 
 in damages to the shipowner if there is any irregularity in 
 the proceedings. A separate application is sometimes made 
 for a warrant to dismantle, and the former practice in most 
 Sheriff Courts was to require a separate application, setting 
 forth the circumstances which Avere relied upon as warranting 
 the dismantling. In modern practice, a separate application is 
 not always insisted in, but it is wise in the initial writ to crave 
 warrant to arrest on the dependence, including warrant to 
 arrest and dismantle maritime subjects. A ship can be 
 arrested only if she is in harbour, or, at least, within the 
 jurisdiction of the Court, although in an open roadstead. The
 
 280 OPERATING JUDGMENT. 
 
 arrester of a ship, who moves her, may render himself liable for 
 damage occasioned to the ship in the operation of shifting-. 
 If the ship sails, despite the arrestment, the defender may be 
 required to find caution before being; allowed to prosecute his 
 defence. If the ship has entered upon a voyage, that cannot be 
 interrupted by arrestment. 
 
 Kennedy v. M'Kinnon, 1821, 1 Carlberg v. Borjesson, 1878, 5 
 
 S. 198. R- (H.L.) 215. 
 
 Clark and Another v. Loos, 1853, Meron v. Umland, 1896, 3 
 
 15 D. 750. S.L.T. 286. 
 
 Peterson v. M'Lean and Others, 
 1868, 6 M. 218. 
 
 656. An arrestee who, in the knowledge of an arrestment, 
 parts with the fund or subject arrested, to the prejudice of the 
 arrester, is liable to him for the value of the fund or subject 
 arrested, or, if that cannot be ascertained, for payment of the 
 amount of the arrester's debt. He may also be liable in 
 damages, and theoretically he is in contempt of Court. The 
 proceedings, however, do not in modern practice take the form 
 of a summary complaint, as in the case of breach of interdict, 
 treating the breach of arrestment as contempt of Court, and 
 craving the punishment of the arrestee by fine or imprison- 
 ment. The modern practice is to proceed by initial writ, 
 setting 1 forth the circumstances said to amount to breach of 
 arrestment. The crave is (a) for payment of such sum as may 
 be ascertained to be the value of the arrested fund or subject; 
 or (b) failing ascertainment thereof, for payment of the amount 
 of the arrester's debt. 
 
 Inglis & Bow v. Smith, &c, 1867, 5 M. 320. 
 
 5. Furthcoming. 
 
 657. The purpose of the action of furthcoming is to make 
 good to the creditor the arrested fund. The action is a 
 separate process, commenced by initial writ at the instance 
 of the party who used the arrestment, or his assignee or 
 representative, and directed against the arrestee as defender, 
 and calling also the arrestee's original creditor (who is, in this 
 process, called the common debtor) for his interest. Formerly, 
 if these defenders resided in different sheriffdoms, the action 
 had to be brought either in the sheriffdom of the arrestee's 
 domicile or in the Court of Session. Under the Sheriff Courts
 
 FURTHCOMIXC. 28] 
 
 Act of 1907 it is competent to bring an action of furthcoming 
 in the Sheriff Court (a) within whose jurisdiction the arrested 
 fund or subject is situated, or (b) to whose jurisdiction the 
 arrestee or holder of the fund is subject. 
 
 Appendix, Rule 128. 7 Ed. VII. c. 51, s. 6 (rj), and 
 
 Sch. I., Rule 128. 
 
 658. It is competent to bring a furthcoming if an arrested 
 fund is vested in the common debtor, although it may not yet 
 be payable to him; but it should be kept in mind that arrest- 
 ments prescribe in three years. The action therefore should 
 be brought within the three years, for only a formal action of 
 furthcoming will interrupt the prescription. 
 
 1669, c. 9. Mantach v. Neilson, &c, 1887, 
 
 1 & 2 Vict. c. 114, s. 22. 14 R. 643. 
 
 659. When arrestment has been used on the dependence, 
 it is not essential, although often it is wise, to again 
 arrest in execution, after decree has been obtained. 
 The arrestee is not entitled to challenge the arrester's 
 claim against the common debtor. The arrestee may dispute 
 the validity of the arrestment, but beyond that he can 
 plead against the arrester only such defences as he could 
 have pleaded against the common debtor, as, for instance, a 
 lien or retention right over a subject arrested, or that he is 
 not indebted to the common debtor, or that other creditors of 
 the common debtor have also used arrestments. The common 
 debtor alone can challenge the arrester's claim upon which 
 the arrestment was used, which is the basis of the action of 
 furthcoming, and the common debtor may also challenge the 
 validity of the arrestment itself. 
 
 Houston v. Aberdeen Town and Vincent v. Chalmers, 1877, 5 R. 
 
 County Bank, 1849, 11 D. 43. 
 
 1490. 
 
 660. When either the arrestee, or the common debtor, 
 enters appearance to defend the action of furthcoming, the 
 procedure, as nearly as may be, follows that of a defended 
 ordinary action, but any person who has an interest, although 
 not called, may appear in a furthcoming process. As a decree 
 of furthcoming divests both the arrestee and the common 
 debtor, and conveys the arrested fund to the arrester, and an 
 extract of decree in the furthcoming will preclude all questions
 
 282 OPERATING JUDGMENT. 
 
 of compensation or retention on the part of the arrestee, he 
 has an interest to see that any such pleas are considered in the 
 furthcoming process. The common debtor has a double interest 
 — he has to see that decree of furthcoming- does not go out 
 against the arrestee for more than his debt to the arrester, and 
 he lias to see that the arrestee fully discloses the arrested fund 
 or subject. Where either or both, therefore, defend, a record 
 will be made up, and proof allowed if necessary, to determine 
 the situation, not only as between the arrester, on the one 
 hand, and the arrestee and the common debtor, on the other 
 hand; but also as between the common debtor and the arrestee. 
 
 Appendix, Rule 132. Donaldson v. Ord, 1855, 27 Jur. 
 
 7 Ed. VII. c. 51, Sch. 1., Rule 625. 
 
 132. 
 
 661. When the arrested subject is not money, the crave of 
 the initial writ should include such conclusions as are necessary 
 to make a decree in the furthcoming' operative to afford the 
 arrester the benefit of the arrested subject, as, for instance, 
 warrant should be asked for the sale of property, or for the 
 sale or transfer of shares, or otherwise as the case may be. 
 
 Lucas v. Campbell & Scott, Valentine v. Grangemouth Coal 
 
 1894, 21 R. 1096. Company, 1897, 35 S.L.R. 12. 
 
 662. When an arrestment has been loosed on caution, the 
 cautioner is called as defender along with the common debtor 
 in the action of furthcoming, but it is proper also to call the 
 arrestee for his interest, for the cautioner's liability to the 
 arrester is no greater than the arrestee's liability to the 
 common debtor, and the arrestee has therefore an interest to 
 appear if he so desire. 
 
 663. When the arrested subject is a ship, the form of 
 making good the arrestment is not an action of furthcoming, 
 but what is much the same thing, an action of sale. All the 
 owners, so far as known, should be called. The crave is for 
 authority to sell, and to apply the proceeds to the arrester's 
 debt. 
 
 6. MULTIPLEPOINDING. 
 
 664. Where more than one arrestment has been served upon 
 the same arrestee, or where, in a process of furthcoming,
 
 MULTIPLEPOINI)IN( i. 283 
 
 persons other than the arrester appear to claim an interesl in 
 
 the arrested fund or subject, the proper form of action to make 
 
 good the arrested fund, and determine who lias best right to it. 
 
 is an action of multiplepoinding (poinding being a genera] 
 
 expression formerly used to denote any kind of distress or 
 
 diligence). This may bo brought in the Sheriff Court within 
 
 whose jurisdiction the fund or subject which has been arrested 
 
 lies, or to whose jurisdiction the arrestee is subject. There 
 
 is no limitation as to the mode in which the arrestee may be 
 
 subject to the jurisdiction. It seems competent, therefore, to 
 
 bring the action in any Sheriff Court to whose jurisdiction 
 
 the arrestee is in any way subject, as, for instance, having 
 
 his domicile within it, or carrying on business within it, or 
 
 within which his goods have been arrested ad fundandam 
 
 jurisdictionem, or within which he owns heritable property, 
 
 the rents of which have been arrested, or within which lie has 
 
 contracted to deliver an article which has been arrested before 
 
 delivery, or the like. There is therefore a wide choice as to 
 
 the forum in which such an action may be brought, but this 
 
 choice is subject to the Sheriff's discretionary power of 
 
 transfer to a more convenient forum. 
 
 Appendix, Rules 128, 19, 21. 7 Ed. VII. c. 51, s. 6, Sch. 1., 
 
 Rule 128. 
 
 665. There is also a wide latitude as to who may be the 
 
 real pursuer, for any claimant is entitled to raise an action 
 
 of multiplepoinding, as well as the holder of the fund or 
 
 subject in medio. The nominal pursuer, however, is always the 
 
 holder of the fund, who is called the nominal raiser. If the 
 
 action is raised by another than the holder, it is nevertheless 
 
 raised in the holder's name, but the party raising the action 
 
 must set forth in the initial writ his own name and designation 
 
 as real raiser. If the real raiser is not the holder of the 
 
 fund, the action must be served on him. 
 
 Appendix, Rule 129. 7 Ed. VII. c. 51. Sch. L, Rule 
 
 129. 
 
 666. All the known claimants having an interest in the 
 fund or subject in medio should be called, whether they are 
 domiciled in Scotland or not. Prior arrestment to found juris- 
 diction is not necessary. Foreigners are cited edictally. 
 Failure to call him, does not preclude any person having an 
 interest from appearing to support his interest, and, subject
 
 284 OPERATING JUDGMENT. 
 
 to conditions as to expenses, the Court may allow a claimant 
 to appear at any Btage of the process. Not only are direct 
 claimants upon the fund entitled to appear, but a claimant's 
 creditor, in a liquid debt, is entitled to lodge a riding- claim 
 upon that of a claimant, in order to obtain payment of his 
 debt out of such portion of the fund as the claimant may be 
 found entitled to. Such a riding claim, however, will not be 
 received, after decree has been pronounced preferring the claim 
 of a claimant. 
 
 Miller v. Ure, 1838, 16 S. 1204. National Bank v. City Restau- 
 
 Anglo-Foreign Banking Com- rant Company, 1901, 4 F. 17. 
 
 pany, 1879, 16 S.L.R. 731. Scottish Life Assurance Corn- 
 Gill's Trustees v. Maxwell's pany v. Donald, 1902, 9 
 
 Trustees, 1889, 16 R. 403. S.L.T. 348. 
 
 667. In an action of multiplepoinding, notice of appearance 
 need not necessarily be lodged, unless by a party challenging 
 the competency of the action, or the amount of the fund in 
 medio; for the claimants, whether called in the action or not, 
 are not, properly speaking, "defenders," and they are not 
 liable in expenses merely because they have been called. The 
 expenses of raising the action are a first charge upon the fund 
 or subject in medio. The nominal raiser will always be 
 allowed his expenses out of the fund, and, if the action was 
 necessary, it is in the discretion of the Sheriff to allow the real 
 raiser also his expenses, preferably, out of the fund in medio. 
 
 Appendix, Rule 129. Shaw (Hepburn's Trustee) v. 
 
 7 Ed. VII. c. 51, Sch. I., Rule Rex, 1894, 21 R. 1024. 
 
 129. 
 
 668. The primary object of the action being the exoneration 
 of the holder of the fund, the first step in the process is to 
 settle the fund, which may be money or property. If the 
 amount of the fund, or the holder's liability to disburse it, is 
 in dispute, a condescendence and defences will be lodged in 
 the usual way, a record made up, and this issue disposed of 
 before the claims are entertained. The nominal raiser remains 
 as a party in the process until this question is disposed of. 
 When it has been determined, or where all parties interested 
 agree upon the fund, the holder is found liable in once and 
 single payment, and entitled to his expenses. The fund, if 
 money, is then consigned, or if it is a subject, is generally 
 realised and the proceeds consigned, but sometimes the subject 
 is deposited. The nominal raiser, being exonered, then ceases
 
 .MI!LTIPLEP0IND1N<;. 285 
 
 to appear as a party, and the process becomes one of com- 
 petition amongst the claimants. An interlocutor making no 
 decerniture but merely exonerating the nominal raiser, and 
 ordering claims, is not appealable without leave. 
 
 Appendix, Rule 132. Macduff v. Macduff, 1893, 9 
 
 7 Ed. VII. c. 51, Sch. I., Rule S.C.R. 243. 
 
 132. Boyd's Trustees v. Boyd, 1906, 
 
 Lane; v. Downie, 1872, 9 S.L.R. 13 S.L.T. 878. 
 
 308. 
 
 6G9. The expense of a decree of exoneration being a prefer- 
 able claim upon the fund in medio, the order upon the holder 
 is generally expressed to consign under deduction of his 
 expenses, modified at a named figure, or as taxed. If there 
 is any fear that an arrestee may not implement an order to 
 consign, it nia}^ be well to move that the order include authority 
 to issue extract to the real raiser, or some other named party 
 in the cause. 
 
 670. The fund having been determined, the Sheriff orders 
 
 claims, and, the rival claimants having been afforded, where 
 
 that is necessary, the opportunity of answering each other's 
 
 claims, a record is made up upon the claims and answers, if 
 
 necessary proof is allowed, and the question who has best 
 
 right to the fund is disposed of in the same manner as any 
 
 other issue in an ordinary defended action. Only a party who 
 
 has stated a claim can be preferred to any portion of the fund. 
 
 The facts upon which several claimants base their claims may 
 
 be stated in one paper, but the formal claim, and pleas in law, 
 
 must be separately stated. 
 
 Appendix, Rules 131, 132. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 131, 132. 
 
 671. The mere raising of an action of multiplepoinding 
 
 does not prevent diligence by creditors, but it operates in 
 
 effect as a suspension of the competing diligence of the various 
 
 claimants who appear in the multiplepoinding process. A 
 
 creditor is not entitled to claim in a multiplepoinding. and 
 
 at the same time to force his personal diligence. If a person 
 
 not in the multiplepoinding process proceed with diligence 
 
 against the holder of the fund, the holder may plead the 
 
 pending multiplepoinding process as a ground of suspension 
 
 of that diligence. 
 
 Hendry v. Brown, 1851, 13 D. Ferguson v. Bothwell, 1882, 9 
 
 1046. R. 687.
 
 286 
 
 UL'K RATING JUDGMENT. 
 
 672. Although must commonly arising out of competing 
 arrestments, and formerly regarded as competent only where 
 there was double diligence, the process of multiplepoinding is 
 
 iioi now so restricted, hut is a competent process whoever there 
 are competing interests, even if formal competing diligence 
 lias not been used, or even where there has been no diligence, 
 bui the holder of a fund or subject requires judicial exonera- 
 tion, bcause of competing claims. The law now accords a 
 wide interpretation to the principle of " double distress," 
 which grounds an action of multiplepoinding. "A multiple- 
 '" poinding is a very useful action, but is liable to abuse, and 
 " is not to be used in all circumstances." 
 
 Per Lord President in Logan v. 
 
 Wilkie, 1855, 17 D. 485. 
 Clydesdale Bank v. Russell, 1859, 
 
 21 D. 886 (per Lord Kinloch). 
 Blair's Trustees v. Blair, 1863, 
 
 2 M. 284. 
 North British Railway Company 
 
 v. White, 1881, 9 R. 97. 
 Jamieson v. Robertson, 1888, 16 
 
 R. 15. 
 Winchester v. Blakey, 1890, 17 
 
 R. 1046. 
 Meikle v. Tait's Factor, 1890, 17 
 
 R. 1182. 
 
 Muir, 1897, 
 
 1 F. 
 
 Dallas, 
 
 Boyd, 
 
 Commercial Bank v. 
 
 25 R 219. 
 Agnew v. White, 1899, 
 
 1026. 
 M'Gillivray's Trustees 
 
 1905, 7 F. 733. 
 Boyd's Trustees v. 
 
 1906, 13 S.L.T. 878. 
 Colonial Mutual Life Assurance 
 
 Society v. Brown, 1911, 48 
 
 S.L.R. 427. 
 Glen's Trustees v. Glen, &c, 
 
 1911, S.C. 1178. 
 Ironside v. Ironside, &c, 1911, 
 
 27 S.C.R. 321. 
 
 673. Claimants in a process of multiplepoinding are not 
 within the strict rules applicable to pursuers, although a com- 
 petition between competing claimants is a litigation. Thus, 
 the Court has a discretion to allow a party to appear at any 
 stage. So also a foreigner may be a claimant, without neces- 
 sarily requiring to sist a mandatory; but if a person claims in 
 any special character, as, for instance, a trustee or an assignee, 
 or a creditor making a riding claim upon a claimant's interest, 
 he must set forth his title in his claim, just as a pursuer suing 
 in a particular character must set forth his special title. 
 
 Appendix, Form A. 
 
 Dymond v. Scott, 1877, 5 R. 
 
 196. 
 North British Railway Company 
 
 v. White, 1881, 9 R. 97. 
 Binnie's Trustees v. Henry's 
 
 Trustees, 1883, 10 R. 1075. 
 Gill's Trustees v. Patrick, 1889, 
 
 16 R. 403. 
 
 Sawers' Factor v. Sawers, 1889, 
 17 R. 1. 
 
 National Bank v. City Restau- 
 rant Company, 1901, 4 F. 17. 
 
 Gordon's Trustees v. Forbes, 
 1904, 6 F. 455. 
 
 Pauline v. Pauline, 1905, 7 F. 
 541. 
 
 674. A claimant in a multiplepoinding is not necessarily, 
 although generally, a person with a constituted claim against
 
 MI'LTIPLEPOINDIXC 287 
 
 the common debtor. He may be a creditor of a claimant, and 
 may lodge a riding 1 claim upon that claimant's interest in the 
 multiplepoinding process. But a claimant's creditor can do 
 this only if he has a constituted claim against the claimant 
 whom he alleges to he his debtor. A general illiquid claim 
 will not warrant a riding- claim in a multiplepoinding. 
 
 Royal Bank v. Stevenson, 1849, Ramsay's Judicial Fa.ctor v. 
 
 12 D. 250. British Linen Bank, 1911, 
 
 S.C. 832. 
 
 G75. In a multiplepoinding process, the procedure rules 
 are not strictly applied. Thus, if a claim' is not lodged within 
 the time allowed for claims, decree preferring another claimant 
 is not necessarily granted by default. The Court may receive 
 claims at any time up to the final interlocutor allocating the 
 fund or subject, or even later; but, if a claim is not timeously 
 lodged, the Court has, of course, always a discretion to attach 
 an expenses condition to its reception. 
 
 Dymond v. Scott, 1877, 5 R. Landale v. Wilson, 1900, 2 F. 
 
 '196. 1047. 
 
 Cowan's Trustees v. Cowan, Ramsay's Judicial Factor v. 
 
 1886, 16 R. 7. British Linen Bank, 1911, S.C. 
 
 832. 
 
 676. An action of multiplepoinding is not competent, on 
 the ground of distress by diligence, unless there is a competitive 
 element. Thus, where there is only one arrestment, or only 
 one possible claimant, it is not necessary for an arrestee to 
 bring an action of multiplepoinding merely to obtain exonera- 
 tion. It is competent, however, for testamentary trustees, 
 who are in doubt as to the proper beneficiaries in the trust 
 estate, or who are unable to obtain a discharge from the 
 beneficiaries, to bring an action of multiplepoinding, although 
 the claims upon the estate are not competitive, if they are 
 uncertain. 
 
 Bank of Scotland v. Comrie, 1871, M'Gillivray's Trustees v. Dallas, 
 
 8 S.L.R. 419. 1905, 7 F. 733. 
 
 Connel's Trustees r. Chalk, Johnston v. Richardson, 1905, 
 
 1878, 5 R. 735. 13 S.L.T. 537. 
 
 Davidson r. Ewen, 1895, 3 
 S.L.T. 162. 
 
 (»77. To make an action competent, there must be a fund 
 or subject to which the common debtor has right. Thus, a 
 non-acceding- creditor, upon an estate being administered by 
 a trustee under a trust deed for behoof of creditors, is not
 
 288 OPERATING JUDGMENT. 
 
 entitled to bring on action of multiplepoinding, because the 
 fund in t lie trustee's hand is not a debt due to the common 
 debtor, but is held by the trustee for the creditors pri?no loco, 
 and for the bankrupt only after the creditors have been paid 20s. 
 per £. 
 
 Kyd v. Waterston, 1880, 7 R. 884. 
 
 678. An action of multiplepoinding may be a convenient 
 form for effecting distribution of trust funds, or exoneration 
 of trustees ; but beneficiaries cannot, in that form of process, 
 competently attack the administration by the trustees of the 
 trust estate. 
 
 Robb's Trustees v. Robb, 1880, Richardson v. Wilson, 1905, 12 
 
 7 R. 1049. S.L.T. 775. 
 
 Mackenzie's Trustees v. Suther- 
 land, 1895, 22 R. 233. 
 
 679. In a process of multiplepoinding, where the claims 
 are numerous, it is competent and convenient for the Sheriff 
 to determine the principle upon which the division of the fund 
 is to proceed, and then to remit to a reporter to classify the 
 claims, and report what portion of the fund falls to each 
 claimant. The expense of such a remit is a charge upon the 
 fund, to be deducted before the amount available for division 
 is fixed. 
 
 680. Decree preferring a claimant in a process of multiple- 
 poinding is equivalent to a decerniture against all the other 
 claimants, the holder of the fund, and the common debtor, and 
 is a final judgment, subject to review in the ordinary way. 
 If, therefore, none of the interested parties timeously take an 
 appeal, the judgment becomes final. The holder of the fund, 
 for instance, who has not been exonered, and who allows the 
 appeal days to pass, is precluded from challenging a decree 
 in favour of a claimant, nor will he be entitled to suspend the 
 decree, or diligence upon it, upon any ground which he might 
 have pleaded in the multiplepoinding, as, for instance, a right 
 of retention, or a compensation claim, against the common 
 debtor. 
 
 Downie v. Rae, 1832, 11 S. 51. Duncan's Factor v. Duncan, 
 
 1874, 1 R. 964. 
 
 681. Formerlv an action of multiplepoinding was com-
 
 MULTIPLEPOINDING. 
 
 petent only in the Court to whose jurisdiction both the common 
 debtor and the arrester were subject, [f they were in different 
 jurisdictions ui if the common debtor was a foreigner, against 
 whom jurisdiction had to be founded, the action commonly 
 required to be raised in the Court of Session. The Sheriff 
 Court Act, 1870, eliminated the element of the common debtor. 
 The Sheriff Courts Act, 1907, also disregards him, and 
 expressly declares the action to be competent in the sheriff- 
 dom of the locus of the fund, or subject in medio, or that to the 
 jurisdiction of which the arrestee or holder of the fund is 
 subject, " although the common debtor may not reside within 
 " either sheriffdom." But it is still essential that the common 
 debtor be called as a party. If the common debtor is within 
 Scotland, the action should be served upon him in the usual 
 manner. If he is furth of Scotland, it should be served 
 edictally 
 
 Appendix, Rule 128. Smyth v. Ninian, 1826, 5 S. 8. 
 
 39 & 40 Vict. c. 70, s. 47. Wightman v. Wilson, 1858, 20 
 
 7 Ed. VII. c. 51, s. 6 (9), Sch. D. 779. 
 
 I., Rule 128. 
 
 7. Poinding and Sale. 
 
 682. The moveable effects of a debtor, who has failed to 
 implement a decree for payment, after being duly charged, 
 are made available to the creditor by poinding and sale, the 
 proceedings in regard to which are regulated by the Debtors 
 (Scotland) Act, 1838. Poinding is appropriate when such 
 moveabh' property is in the custody or control of the debtor 
 himself. If it is in the hands of a third party, the appropriate 
 diligence is arrestment. The extract of a Sheriff Court decree 
 for payment contains a warrant to poind, after the expiry of 
 the days of charge. 
 
 1503 c. 98. Lochhead v. Graham, 1883, 11 
 
 1 & 2 Vict. c. 114, s. 23-30. R. 201. 
 
 55 & 56 Vict. c. 17, s. 7 (1), 
 Sch. (I.). 
 
 683. Such moveables only as are corporeal may be poinded, 
 except for Crown debts, for recovery of which this diligence 
 is, b}^ the Exchequer Act, 1856, extended to include bank 
 notes, bills, bonds, money, crop, stock, and implements. Some 
 moveables are exempt from poinding, as, for instance, agri- 
 cultural implements, and horses used in tillage, during the 
 
 19
 
 290 OPERATING JUDGMENT. 
 
 tillage season, if there are any other effects available. By 
 
 established practice ships are not poinded, but arrested, 
 
 although an order made under the Merchant Shipping Act, 
 
 1 89 I . tut payment of seamen's wages might perhaps be operated 
 
 by poinding-. 
 
 1503 c. 98. 57 & 58 Vict. c. 60, s. 693. 
 
 19 & 20 Vict. c. 56, s. 32. 
 
 G84. The poinding may proceed at any time after the 
 expiry of the days of charge, and there is no time limit within 
 which it must be executed. It is carried out by an officer of 
 Court, without any further warrant than the extract decree. 
 That extract carries authority to open shut and lockfast 
 places if that be necessary to enable the officer to execute the 
 poinding. The goods poinded are appraised by two valuators, 
 and set forth in a schedule, each article being separately valued 
 and entered ; and a copy of the schedule of poinding is delivered 
 by the officer to the debtor, or to the custodian of the poinded 
 effects, the execution, signed by the officer and the valuators, 
 being reported to the Sheriff within eight days, unless the 
 Sheriff on cause shown extends the time. 
 
 v. Douglas, 1880, 8 
 
 1 & 2 Vict. c. 114, s. 24, 25. 
 
 Le Conte 
 
 55 & 56 Vict. c. 17, s. 7 (1). 
 
 R. 175. 
 
 685. A poinding may be interrupted in several ways. In 
 the first place, it may be interrupted, in the best way, by 
 payment being made of the debt. The debtor who pays to an 
 officer should make sure that the officer has authority to receive 
 payment, for receiving the debt is not within the scope of the 
 officer's duty. If he had not authority to collect the debt, 
 the person paying the debt runs the risk of having again to 
 pay it to the creditor, if it does not reach him through the 
 officer. The proceedings must be stopped if the debtor tenders 
 the amount in the decree, principal, interest, and expenses, or 
 the appraised value of the poinded effects. The officer cannot 
 demand the dues of charge, or expenses incurred in the poind- 
 ing, although these are charges for which the debtor may be 
 otherwise made liable. The person making payment is entitled 
 to have a marking made upon the extract decree, but he is 
 not entitled to delivery of it. 
 
 Inglis v. Macintyre, 1862, 24 D. 547. 
 
 686. The poinding may be interrupted by some person
 
 POINDING AND SALE. 291 
 
 appearing and claiming the poinded effects as his. In special 
 cases the officer may desist, if after examining the claimani 
 or his witnesses on oath, or considering documents of title pro- 
 duced, he thinks there is any ground for the claim, hut he 
 should preserve an inventory of the effects on the premisi 
 If the claim turns out to be groundless, the interrupter may be 
 liable to the creditor in damages. But it is very seldom thai 
 an officer is likely to desist from carrying out a poinding, unless 
 payment is made. The claimant is not thereby prejudiced, 
 for, if he can establish a title to the effects, he has his remedy 
 by interdicting the sale. 
 
 687. Bankruptcy interrupts a poinding. If the officer is 
 certiorated that an award of sequestration of the debtor's 
 estates has been granted, he must desist, even although the 
 poinding creditor may be a possibly preferable creditor. He 
 should, however, complete an inventory. The creditor must 
 allow the trustee in bankruptcy to realise the effects, and his 
 remedy is to claim a preference in the sequestration process. 
 
 Sinclair v. Edinburgh Parish Council, 1909, S.C. 1353. 
 
 688. At the poinding, any other creditor who holds a 
 warrant to poind, that is to say, avIio holds an extracted decree 
 for payment, may claim to be conjoined at any time before the 
 completion of the poinding. The officer is, at the moment, 
 the sole judge of whether a creditor should be conjoined; but 
 if the diligence is ex facie regular, the officer should endeavour 
 to poind sufficient to cover the judgment debts of both the 
 poinding creditor, and the intervening creditor. 
 
 1 & 2 Vict, c. 114, s. 23. 
 
 689. The report of poinding should set forth the designa- 
 tions of the creditor, the debtor, and the valuators, the debt and 
 the diligence, as well as a list of the poinded articles and their 
 value. I'pon the report of the poinding, the Sheriff may grant 
 a warrant for the sale to proceed at a time and place fixed, 
 the time not to be less than eight, or more than twenty, days 
 after publication of notice of sale. The notice may be in 
 the form directed by the Sheriff, and a copy of the warrant of 
 sale must be served, at least six days before the date of sale, 
 upon the debtor, and also upon the person in whose custody
 
 292 OPERATING JUDGMENT. 
 
 the poinded effects may be. Such service may he made hy an 
 officer, or hy registered posl letter. 
 
 1 & 2 Vict, c. 114, s. 25, 26. Lochhead v. Graham, 1883, 11 
 
 R. 201. 
 
 690. If at the sale no offerer appear to offer the upset price, 
 which is not to he less than the appraised value, the articles 
 are delivered hy the judge of the roup to the poinding creditor 
 or his agent, to be applied as at their appraised value in 
 satisfaction pro tanto of the debt, interest, and expenses. The 
 poinding creditor, or any other creditor, may purchase at the 
 sale. If a sale is effected, the roup roll and a report of sale 
 is lodged, and the free proceeds should be consigned, although, 
 where there is no competition, this is in practicenot always done. 
 The Sheriff, if there he no competing claims, may order the 
 proceeds of sale to be paid to the poinding creditor; but if 
 there are competing claims, the right to the consigned fund is 
 determined in the same manner as in a multiplepoinding. 
 
 1 & 2 Vict. c. 113, s. 26. 1 & 2 Vict. c. 114, s. 23, 28, 29. 
 
 691. The net proceeds of sale should, theoretically, always 
 be consigned with the Sheriff-clerk, along with the report of 
 sale. The convenient, and not uncommon, practice of the officer 
 handing over the proceeds to the poinding creditor is not in 
 accordance with the statutory directions, and cases may be 
 conceived where this might prejudice creditors other than the 
 poinding creditor, who might be entitled to participate. The 
 free proceeds should, strictly speaking, be consigned in Court, 
 and allocated to creditors in the poinding process. 
 
 Cillon v. Christison, 1909, 25 S.C.R. 283. 
 
 692. -If the goods of a third party have been erroneously 
 included in a poinding schedule, the proper course for a party 
 claiming their ownership is to intervene in the poinding process, 
 by minute, and object to such goods being included in the 
 warrant of sale. Tf the warrant of sale has been already 
 granted, the remedy is interdict the sale. 
 
 Lindsay v. Earl of Wemyss, Ross v. Sinclair, 1904, 20 
 
 1872, 10 M. 708. S.C.R 317. 
 
 Lamb v. Wood, 1904, 6 F. 1091. 
 
 693. A person who unlawfully intromits with, or carries 
 off, poinded effects is liable to be imprisoned till he restore
 
 POINDING AND SALE. 293 
 
 the effects, or pay to the poinding creditor double their 
 appraised value. A warranl for bis imprisonment may be 
 obtained upon a summary application, al the instance of the 
 poinding creditor, without the concurrence of the procurator- 
 fiscal, for, although imprisonmenl may follow, (his is a civil 
 process. Such application may be presented, and warrant 
 granted, either in the Sheriff Court within whose jurisdiction 
 the poinding was executed, or in the Court where the party so 
 interfering with the poinded effects has his domicile. The 
 application must be served upon the party complained against, 
 upon not less than forty-eight hours' indueia:, and a diet fixed 
 for hearing and, if necessary, for trial in a summary manner, 
 but there is no appeal against an order for imprisonment. It 
 can be reviewed only by way of suspension. 
 
 Appendix, s. 3 [p). Wilson v. M'Kellar, 1896, 24 R. 
 
 1 & 2 Vict. c. 114, s. 30. 254. 
 
 7 Ed VII. c. 51, s 3 (p). Angus Brothers, Limited v. 
 
 Crocket, 1909, 25 S.C.R. 323. 
 
 694. The procedure of sale under a poinding is by statute 
 under the direction of the Sheriff. He has therefore authority 
 to do whatever is requisite to afford creditors the benefit of 
 the poinding process. Thus, if the goods poinded are perish- 
 able, he may order their conversion into money, or, if they are 
 in an insecure place, he may order their removal into safe 
 custody. 
 
 1 & 2 Vict. c. 113, s. 26. 
 
 8. Imprisonment. 
 
 695. A Sheriff Court extract decree is a warrant for 
 imprisonment, when imprisonment is competent. Formerly 
 imprisonment was competent for non-payment of a money 
 decree exceeding £8 6s. 8d., but the Debtors Act, 1880, 
 abolished imprisonment for civil debt, under certain 
 exceptions, and it is now competent to imprison only for non- 
 payment of (a) Crown taxes, the term not to exceed twelve 
 months; (b) rates and assessments, the term not to exceed 
 six weeks in respect of rates of any one year; (c) alimentary 
 debts, when failure to pay is wilful, the term not to exceed 
 six weeks; and for non-implement of a decree ad factum 
 prcestandum. 
 
 45 & 46 Vict. c. 42. Act of Sederunt, 8th Jan.. 1881, 
 
 55 & 56 Vict. c. 17, s. 7. s. 1, 2.
 
 294 OPERATING JUDGMENT. 
 
 69(i. When imprisonment is competent, the procedure is, 
 as regards debts other than alimentary, regulated by the 
 Debtors (Scotland) Act, 1838. The extract decree and execu- 
 tion of charge being produced to the Sheriff-clerk, is registered 
 by him. The party desiring to imprison a defender presents 
 the certificate of registration, having endorsed a minute sub- 
 scribed by himself or his agent craving warrant for imprison- 
 ment, upon which the Sheriff-clerk writes, "Fiat ut petitiur," 
 and this deliverance is authority to officers of Court to appre- 
 hend, and, if necessary for that purpose, to open shut and 
 Lockfast places, and is authority also to prison authorities to 
 receive and detain the prisoner, till liberated in due course of 
 law. 
 
 1 & 2 Vict. c. 114, s. 11, Sch. 8. 
 
 697. As regards alimentary debts, the procedure is under 
 the Civil Imprisonment Act, 1882. The creditor, by minute, 
 ciaves warrant to imprison. Upon this the debtor is cited to 
 attend to show cause why warrant should not be granted. The 
 onus is on the debtor to show that his failure to pay has not 
 been wilful. If he fail to do so, warrant may be granted for 
 his imprisonment for a time not exceeding six weeks. The 
 Sheriff's judgment is not appealable. The debtor's remedy is 
 by way of suspension. 
 
 45 & 46 Vict. c. 42. Christie v. Louden, 1889. 6 
 
 Strain v. Strain, 1886, 2 S.C.R. S.C.R. 140. 
 
 310. 
 
 698. An alimentary debt on which imprisonment may 
 follow is not necessarily a direct decree of Court, ordaining a 
 defender to pay an alimentary debt. It may be a statutory 
 order. For instance, when a child was admitted to an indus- 
 trial school, under the Youthful Offenders Act, 1901, the 
 Sheriff fixed a sum the parent had to pay to the Delinquency 
 Board, towards the child's maintenance, and the statute 
 declared this order to be enforceable in the same manner as a 
 decree for an alimentary debt, that is to say, by procedure 
 under the Civil Imprisonment Act of 1882. That statute has 
 been repealed, and its main provisions embodied in the Children 
 Act of 1908, and this very useful diligence enactment is not 
 expressly repeated. Nevertheless an order made upon a parent 
 to contribute to the support of a child in an industrial school
 
 IMPRISONMENT. 295 
 
 may probably still be fairly regarded as an alimentary 
 debt. 
 
 1 Ed. Vn. c. 20. 8 Ed. VII. c. 67, 75. 
 
 9. Inhibition. 
 
 699. As regards heritable property, inhibition is the 
 diligence corresponding to arrestment of moveables ; but, unlike 
 arrestment, it is not competent in a Small Debt Court process. 
 Its object is to prevent a debtor dealing- with his heritable 
 property to the prejudice of creditors. Like arrestment, tins 
 diligence may be used either before or after judgment, but 
 it is competent on the dependence only where a pecuniary con- 
 clusion as a substantive craving- (not merely as an alternative 
 craving) is competent. Thus, inhibition may be used in an 
 action with mixed cravings, as, for instance, separation and 
 aliment, but not in an action with alternative cravings, such 
 as delivery, with an alternative money craving. It is directed 
 against the alienation of lands and heritages, but its effect is 
 merely prohibitory. Of itself it gives the inhibitor no title to, 
 and effects no transfer of, the lands. It is made operative by 
 an action of adjudication in the Court of Session. 
 
 31 & 32 Vict. c. 101, s. 155-169. Weir v. Otto, 1870, 8 M. 1070. 
 
 Gordon v. Duncan, 1827, 5 S. Stafford v. M'Launn, 1875, 3 R. 
 
 511. 148. 
 
 Lamont, 1867, 6 M. 84. Burns v. Burns, 1879, 7 R. 355. 
 
 700. Inhibition is not, properly speaking, a Sheriff Court 
 process, for it proceeds upon letters issued under the Signet. 
 Production of a Sheriff Court decree granted in the Ordinary 
 Court (or for inhibition on the dependence production of an 
 initial writ with a money crave) is sufficient warrant for issuing 
 letters, and a notice thereof, setting forth the names and 
 designations of the persons by and against whom the same 
 is raised and the date of signeting, is registered in the general 
 Register of Inhibitions. If this is done, and the execution 
 is registered within twenty-one days of the date of registration 
 of the notice, the inhibition takes effect from the date of the 
 registration of the notice, otherwise it takes effect only from 
 the date of the registration of the execution. It may be 
 recalled by a Lord Ordinary, subject to appeal. It prescribes 
 in five years, but may be renewed. 
 
 31 & 32 Vict. c. 100, s. 18. Robertson r. Park & Co., 1896, 
 
 32 & 33 Vict. c. 116, s. 155, 24 R. 30. 
 
 156, 158. Milne r. Birrell, 1902, 4 F. 879.
 
 296 OPERATING JUDGMENT. 
 
 10. Adjudication-. 
 
 701. To make it effective, inhibition is followed by an 
 action of adjudication; but this is not competent in the Sheriff 
 Court (except to the limited extent of adjudication contra 
 hcereditatem jacentem). Decree in the action of adjudication 
 adjudges to the creditor the debtor's heritable estate, to the 
 value of the amount of the creditor's constituted debt, principal, 
 interest, and expenses, and also further interest up to the date 
 of redemption of the heritage. An abbreviate of a decree of 
 adjudication, recorded within sixty days, operates as a title 
 to the adjudger, but the right is redeemable within ten years. 
 Meantime, the decree of adjudication may be made the 
 foundation for an action of maills and duties, under which the 
 creditor will take the rents. 
 
 31 & 32 Vict. c. 100, s. 155, Act of Sederunt, 18th Nov., 
 
 156. 1871. 
 
 11. Judgments Extension Act. 
 
 702. Formerly, a judgment of a Scottish Court was not 
 operative in England or Ireland. To make it good, a separate 
 action in the sister kingdom was necessary; but, under the 
 Judgments Extension Act of 1868, a system of registration of 
 decrees of the Courts of the three kingdoms was introduced, 
 the registration in one kingdom of a decree pronounced in 
 another, giving it the same force and effect as if it had been 
 pronounced in the country where it was so registered. This 
 privilege, as regards Scotland, originally applied only to Court 
 of Session judgments; but in 1882 the registration principle 
 was applied also to the inferior Courts, which as regards 
 Scotland means the Sheriff Court, including the Small Debt 
 Court. 
 
 31 & 32 Vict. c. 54. 45 & 46 Vict. c. 31, s. 2. 
 
 703. When a certificate of judgment obtained in an inferior 
 Court of one kingdom has been registered in another, it 
 becomes, for diligence purposes, equivalent to a judgment of 
 the Court where it is so registered, and may be executed 
 according to the practice of the Court of registration. The 
 certificate of judgment w T ill be presented where it is intended
 
 JUDGMENTS EXTENSION ACT. 297 
 
 to execute diligence against the defender. Thus, a certificate 
 of the judgment of an English or Irish County Court may be 
 presented to the Sheriff Clerk of any sheriffdom in Scotland 
 for registration, whereupon it becomes a warrant for 
 diligence, to the same effect as if it had been pronounced in 
 that sheriffdom. 
 
 45 & 46 Vict. c. 31, s. 5. Act of Sederunt, 7th March, 
 
 1883, s. 1. 
 
 704. This registration privilege applies only to judgments 
 in actions for "debt, damages, or costs." A judgment in an 
 action ad factum jwaistandum does not fall within the Judg- 
 ments Extension Act ; but in any action falling within the Act 
 the expression " judgment " includes, not only a decree for 
 payment, interim or final, but also a decree of absolvitor or 
 dismissal, or any interlocutor making an order upon a party 
 in the cause. 
 
 45 & 46 Vict. c. 31, s. 2, 3. 
 
 705. A judgment cannot be registered under the Acts after 
 the lapse of twelve months from its date. After thai time, 
 the privilege of registration is lost, and a person desiring to 
 make good a judgment will require to resort to the former 
 practice of using the judgment as a basis for a separate action, 
 to obtain judgment in the Court of the sister kingdom. 
 
 45 & 46 Vict. c. 31, s. 4, 5. 
 
 706. A certificate of judgment cannot be registered for an 
 amount greater than could have been recovered in an action 
 in the Court of registration. This does not affect the 
 registration of English or Irish judgments in a sheriffdom in 
 Scotland, for there is no restriction in Scotland as to the 
 amount which may be sued for in the Sheriff Court. But, in 
 the converse case, registration of a Scotch judgment in an 
 English or Irish County Court may be precluded, by the 
 amount for which judgment has been given being in excess of 
 the limit of County Court jurisdiction. In that event, the 
 certificate of judgment may be registered at London or Dublin 
 in the Register of Scotch Judgments created by the Judgments 
 Extension Act of 18G8 for Court of Session judgments, in like 
 manner as if the certificate had been that of a Court of Session 
 judgment. 
 
 31 & 32 Vict. c. 54, s. 3. 45 & 46 Vict, c. 31, s. 9.
 
 298 OPERATING JUDGMENT. 
 
 707. The scope of the Judgments Extension Act is 
 narrowed also by the provision that its privileges do not apply 
 to a judgment of a Sheriff Court in Scotland against a person 
 who, at the time of raising the action upon which the judgment 
 proceeds, was domiciled, in England or Ireland, " unless the 
 " whole cause of action shall have arisen, or the obligation to 
 " which the judgment relates ought to have been fulfilled/' 
 in that sheriffdom, and the action was personally served there. 
 This practically excludes actions against all defenders other 
 than those domiciled in Scotland, with the exception of persons 
 subject to the jurisdiction of the Sheriff Court ratione con- 
 tractus, and those personally cited within the jurisdiction. 
 
 45 & 46 Vict. c. 31, s. 10. Hudson v. Innes & Grieve, 1908, 
 
 24 S.C.R. 190. 
 
 708. This restriction of the application of the Act renders 
 of less importance than it would otherwise have been, a 
 difference between the provision of the Act relating to Court 
 of Session judgments, and that relating to Sheriff Court 
 judgments. The original Act of 1868, relating to Court of 
 Session, judgments expressly excluded decrees obtained in 
 absence, in actions proceeding upon arrestment, ad fund mi dam 
 jurisdictionem. The Act of 1882, relating to Sheriff Court 
 judgments, does not contain this exception, so that a judgment 
 having been pronounced in absence, or the defender having 
 been rendered subject to the jurisdiction of the Court by 
 arrestment ad fundandam jurisdictionem, does not appear to 
 be a bar to registration of a certificate of a Sheriff Court 
 judgment, if otherwise registration is competent. 
 
 31 & 32 Vict. c. 54, s. 8. 45 & 46 Vict. c. 31, s. 10. 
 
 709. The Court which registers a certificate of judgment 
 may order the registration to be cancelled, if the judgment is 
 set aside, or the Court is satisfied that it has been implemented. 
 This is only likely to be necessary where some error has 
 occurred, for the Act directs that a certificate of judgment 
 is not to be granted until the appeal days have elapsed, and 
 the Court is satisfied that the judgment has not been 
 implemented. 
 
 45 & 46 Vict. c. 31, s. 3, 6. 
 
 710. If a judgment to which the Act does not apply is
 
 JUDGMENTS EXTENSION ACT. 
 
 Bought tube enforced by registration, a prohibition or injunc- 
 tion againsi the enforcement of the judgment may be obtained 
 from the Supreme Court of England or Ireland by the person 
 against whom the judgment ia proposed to be enforced. In 
 like manner, if an English or Irish judgment is proposed to 
 be enforced by registration in the Sheriff Court in Scotland, 
 suspension and interdict may be applied for in the Bill 
 Chamber in the Court of Session. The Court will not, 
 however, entertain the merits of the cause, but will consider 
 only whether the judgment proposed to be registered is one 
 which falls within the Act. 
 45 & 46 Vict. c. 31, s. 10.
 
 CHAPTER XIII. 
 
 APPEAL. 
 
 1. Value. 
 
 711. Formerly all actions not exceeding £25 in value were 
 restricted to the Sheriff Court. The Sheriff Courts Act, 1907, 
 raised the limit to £50, and expressly enacted that, " subject 
 " to the provisions of this Act and of the Small Debt Acts, all 
 " causes not exceeding £50 in value, exclusive of interest and 
 " expenses, competent in the Sheriff Court, shall be brought 
 " and followed forth in the Sheriff Court only, and shall not 
 " be subject to review by the Court of Session." But, when 
 several actions, each under £50 value, had been conjoined, 
 and the aggregate value exceeded £50, appeal was held 
 competent. 
 
 Appendix, s. 7. Campbell and Others v. Train 
 
 7 Ed. VII. c. 51, s. 7. (1909), 1910, S.C. 147. 
 
 712. The Sheriff Courts Act, 1907, entrusted the final 
 determination of the question whether the value exceeded 
 £50 to the Sheriff, who was to determine the value " in such 
 " way as he may think expedient." 
 
 7 Ed. VII. c. 51, s. 9. 
 
 713. This provision, however, was repealed by the Sheriff 
 Courts Act, 1913, so that the determination of the competency 
 of an appeal upon the ground of value in any kind of case 
 apparently now rests with the appellate Court. The provision 
 of the Sheriff Courts Act, 1913, as regards appeal to the Court 
 of Session is that no appeal shall be competent where the cause 
 does not exceed £5() in value, exclusive of interest and expenses 
 or is being tried as a summary cause, unless the case has first 
 been taken to the Sheriff on appeal, and he certifies it as a 
 case suitable for appeal to the Court of Session. 
 
 Appendix, s. 28. 2 & 3 Geo. V. c. 28, s. 1-2. 
 
 7 Ed. VII. c. 51. s. 28.
 
 VALUE. 301 
 
 714. The contemplation of the statutes appears to be thai 
 the value of a cause should be reckoned ns ai the time the 
 action is laid. Accordingly, if a money claim originally 
 exceeded £50, appeal appears to be competent, although in the 
 course of the process circumstances have changed, or conces- 
 sions have been made, to the effect of reducing- the amount 
 for which judgment can ultimately be given below £50. Nor 
 is the value for appeal affected by a successful defence by way 
 of counter claim, which, being- sustained, has reduced the 
 amount for which decree is granted below £50. The value 
 referred to in the statutes appears to be the value of the cause 
 as presented to the Court, not the value of the cause as 
 decided by the Court; and if the value of the cause really 
 exceeds £50, as, for instance, in the case of a continuing 
 obligation, appeal is competent, notwithstanding that the 
 amount presently exigible does not exceed £50. But if in 
 the course of the process, the continuing liability aspect has 
 gone out of the case, appeal ceases to be competent, unless by 
 certification. 
 
 Appendix, s. 7. Soutar v. Mulhern, 1907, S.C. 
 
 7 Ed. VII. c. 51, s. 7. 723. 
 
 Inglis v. Smith, 1859, 21 D. Paisley Parish Council v. Row 
 
 822. and Glasgow Parish Councils, 
 
 Cunningham v. Black, 1883, 10 1908, S.C. 731. 
 
 R. 441. Stevenson v. Sharp, 1910, S.C. 
 
 M'Kimmie's Trustees v. 580. 
 
 Armour, 1899, 2 F. 156. Melrose Parish Council v. 
 
 Tait v. Lees, 1903, 5 F. 304. Hawick Parish Council, 1912, 
 
 49 S.L.R. 749. 
 
 715. An action with mixed conclusions, which, as origin- 
 ally laid, was appealable, may cease to be so, by one conclusion 
 being abandoned, as, for instance, an action for interdict and 
 damages. If the interdict, owing to change of circumstances, 
 cease to be an operative conclusion, and the damages con- 
 clusion alone is left, the case then becomes a money claim, 
 and if it does not exceed £50 appeal to the Court of Session is 
 barred, except upon the Sheriff's certificate. 
 
 Allen v. Dundee Billposting Company, 1912, S.C. 970. 
 
 716. In an action with a money craving, the sum sued for, 
 as a general rule, determines the value of the cause for the 
 purpose of appeal. But this rule is not absolute, and the 
 statutory criterion of appeal is not the sum sued for, but the 
 value of the cause. Thus, where there are several defenders
 
 302 APPEAL. 
 
 having community of interest, appea] may be competent, 
 although £50 is not claimed from any one defender. So also 
 in cases of continuing liability, the value of (he cause may 
 exceed £50, and so appeal be competent, although the sum 
 for which a present decree is craved may be less; or, although 
 less than £50 may be craved in an accounting, that may be a 
 ha hi me of a debt or obligation of value exceeding £50. 
 
 Brydon v. M;u:farlane, 1864, 3 Camplx-ll and Others v. Train 
 \l. 7. (1909), 1910, S.C. 147. 
 
 Drummond v. Hunter, 1869, 7 Duke of Argyll v. Muir, 1910, 
 M. 347. S.C. 96. 
 
 Birrell v. Taylor, 1884, 12 R, 
 151. 
 
 717. The question has been raised, in regard to reckoning 
 value, whether " interest " in the statutes includes past due 
 interest, or means only interest after citation, as, for instance, 
 does a claim for less than £50 founded upon a past due bill 
 or other obligation with a due date, with interest from its 
 due date, become a claim for over £50 if the past due interest 
 being reckoned would bring the claim over the £50 limit? 
 It is thought that, as regards a money claim, there is no 
 dubiety about the intention. The statutory criterion of value, 
 for privative jurisdiction, and for determining what is a 
 summary cause, and for appeal is capital value, "exclusive 
 " of interest and expenses." Before decree, interest can 
 never be treated as a capital sum. After decree has been 
 obtained, and a charge given, principal and interest may be 
 accumulated into a capital sum by registration of the execu- 
 tion of charge under the Debtors (Scotland) Act, 1838. But, 
 at the initiation of an action, interest cannot be thus accumu- 
 lated with principal, and the statute takes no account of 
 whether interest is sued for from a back date, or from citation. 
 It excludes interest altogether, as an element in determining 
 the value of a money cause. 
 
 Appendix, s. 3 (i), 7, 28. 7 Ed. VII. c. 51, s. 3 (i), 7, 28. 
 
 1 & 2 Vict. c. 114, s. 10. 2 & 3 Geo. V. c. 28, s. 1, 2. 
 
 718. An action ad factum prcestandum under the Sheriff 
 Courts Act, 1907, was, for appeal purposes, deemed to be over 
 the £50 limit, unless (a) the value was disclosed, or (b) in 
 the course of the process the Sheriff determined the value to 
 be less than £50. Whai disclosure meant was not very clear, 
 and in most cases ad factum prcestandum, the importance of the
 
 VALUE. 303 
 
 cause to the parties is not measured by money value. The 
 proviso led to confusion, and it was repealed by the Ad of 
 1913. 
 
 Appendix, s. 7. 2 Geo. V. c. 28, s. 1, Sen. I. 
 
 7 Ed. VII. c. 51, s. 7, Proviso 
 1. 
 
 2. Appeal to the Sheriff. 
 
 719. This mode of review, by appeal from a single judge 
 to another single judge, is peculiar to the Sheriff Court of 
 Scotland. Originally there Mas no such intermediate appeal, 
 the Sheriff Court judgment being subject only to review by 
 the Court of Session, because the judgment in the Sheriff 
 Court, whether pronounced by the Sheriff himself or bv his 
 Substitute, was the Sheriff's judgment. The practice, how- 
 ever, grew of regarding the taking of the opinion of the 
 Sheriff as a form of review, and the Act of Sederunt of 1839 
 recognised as review what is called "craving the opinion of 
 " the Sheriff on the whole or any part of " an interlocutor 
 pronounced by the Sheriff-Substitute. The Sheriff-Substitute, 
 however, might refuse to allow such appeal " against any 
 " interlocutor which, in his opinion, ought to be carried into 
 " immediate effect." Appeal from the Sheriff- Substitute to 
 the Sheriff, without leave granted, and as matter of right, 
 was first recognised by the Sheriff Courts Act, 1853; the 
 scope of such appeal was more expressly defined by the Act 
 of 1S7G; and the main provisions of that now repealed statute 
 are re-enacted in the Sheriff Courts Acts, 1907-1913. 
 
 Appendix, s. 27, Rules 86-96. 2 & 3 Geo. V. c. 28, s. 2. Sen. I 
 
 16 & 17 Vict. c. 80, s. 16. Act of Sederunt, 10th July, 
 
 39 & 40 Vict. c. 70, s. 27-34. 1839, s. 98-100. 
 
 7 Ed. VII. c. 51, s. 27, Sch. I., 
 Rules 86-96. 
 
 3. Appeal to Court of Session. 
 
 720. It has long been recognised in principle that the 
 Court of Session, as the Supreme Court of Scotland, has power 
 to review the judgments of the inferior Courts, including the 
 Sheriff Court. The general rule is that, unless review by the 
 Court of Session is, by express statutory enactment, or by clear 
 implication, excluded, every Sheriff Court judgment, or other 
 inferior Court judgment, is subject to review by the Court of 
 Session. But where the inferior Court judgment is the
 
 304 APPEAL. 
 
 decision of a Court to which a discretion in some particular 
 matter Las been relegated by statute, the appellate Court will 
 not, as a rule interfere, unless the inferior Court lias com- 
 pletely failed to give effect to the statute. 
 
 New Mining Syndicate v. Hunter, &c, 1909, S.C. 1390. 
 
 721. The Sheriff Court statutes did not create this right 
 
 of review, but only regulated it. Originally Hie judgment 
 
 of the Supreme Court was obtained by a separate process 
 
 of advocation. A party who felt himself aggrieved by a 
 
 judgment of the Sheriff, whether final or interlocutory, 
 
 might have the cause removed to the Court of Session by 
 
 presenting in the Hill Chamber a bill of advocation, comprising 
 
 the whole pleadings and interlocutors of the inferior Courts, 
 
 with written pleadings in support of the advocation. In 
 
 1838, this cumbrous process was abolished, and a short statutory 
 
 note of advocation against a final judgment was introduced, 
 
 " having prefixed thereto the interlocutor or interlocutors 
 
 "complained of, together with the notes of the judge, if any, 
 
 " affixed thereto, and setting forth in a prayer the relief or 
 
 " remedy craved." The effect of lodging such a note was to 
 
 transfer the whole process to the Court of Session. The Sheriff 
 
 Court Act of Sederunt of 1839 gave detailed directions as to 
 
 procedure in advocation, and the circumstances in which 
 
 caution might be required as a condition of advocation being 
 
 allowed. The Sheriff Court Act of 1853 did not deal with the 
 
 subject of advocation to the Court of Session. It was not till 
 
 1868 that the Court of Session Act abolished the process of 
 
 advocation, and adopted the short note of appeal (which the 
 
 1853 Act had introduced as the mode of appeal from the 
 
 Sheriff-Substitute to the Sheriff), as the method also of 
 
 submitting to review of the Court of Session a Sheriff Court 
 
 judgment. This provision of the 18G8 Act is repealed by the 
 
 Sheriff Courts Acts, 1907-1913, but the procedure by note of 
 
 appeal is re-enacted. 
 
 Appendix, Rule 87. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 1 & 2 Vict. c. 86. 87. 
 
 16 & 17 Vict. c. 80, s. 16. Act of Sederunt, 10th July, 
 
 31 & 32 Vict. c. 100, s. 65. 1839, s. 119-130. 
 
 4. Mode of Appeal. 
 
 722. In present-day practice, a judgment, whether on 
 appeal from the Sheriff-Substitute to the Sheriff, or from either
 
 MODE OF APPEAL. 305 
 
 to the Court of Session, ;in<l whether in a summary cause or in 
 au ordinary action, or any other form of action in which appeal 
 is competent, is submitted to review in the same manner. The 
 appellant writes upon the interlocutor sheet, or, if it is not 
 in the Sheriff-clerk's hands, upon a separate paper, a short 
 note of appeal, which within two days, the Sheriff-clerk 
 intimates to the other parties or their agents, and the process 
 is then transmitted to the Appeal Court. The appeal, however, 
 is not invalidated by the failure of the Sheriff-clerk to give 
 the requisite notice. After an appeal has been noted, the 
 appellant is not entitled to abandon it, unless of consent of all 
 parties, or by leave of the appellate Court. Formerly each 
 party dissatisfied with a judgment had to note an appeal to 
 ensure his complaint being heard, but it is now sufficient that 
 any one party do so, for an appeal once noted by any party in 
 a cause, submits the whole cause to review, and any party 
 may insist in the appeal. 
 
 Appendix, Rules 87-96. 7 Ed. VII. c. 51, s. 27-29, Sch. 
 
 31 & 32 Vict. c. 100, s. 71, and I., Rules 87, 88, 93, 94, 96. 
 
 Act of Sederunt, 10th March, 
 
 1870, s. 3. 
 
 723. If an appeal is taken from the Sheriff-Substitute to 
 the Sheriff, and the appeal is dismissed by the Sheriff, because 
 the appellant does not prosecute his appeal, it is not then 
 competent for the appellant to take an appeal to the Court of 
 Session. The principle is that, when a party does not insist 
 in the appeal before the Sheriff, he has confessed that he cannot 
 maintain his case. Accordingly, if a party who has taken 
 an appeal to the Sheriff desires to preserve a further right of 
 appeal to the Court of Session, he must at least appear to 
 maintain his appeal, whether or not he argues it before the 
 Sheriff, for if he allow his appeal to be dismissed in respect it 
 is not insisted in, the Court of Session might refuse to entertain 
 an appeal. 
 
 Manchester & County Bank v. Moore (1908), 1909, S.C. 246 
 
 724. When an appeal has been taken, either from the 
 Sheriff-Substitute or from the Sheriff, to the Court of Session, 
 the same principle applies; but the procedure is somewhat 
 different. If the papers have been printed, but the appellant 
 does not desire to go on with the appeal, the Court of Session 
 does not dismiss the appeal in respect it is not insisted in. 
 
 20
 
 306 APPEAL. 
 
 Leave ia granted to the appellant to abandon his appeal, on 
 condition of paymenl of expenses. If the appellant fails to 
 comply with the Court of Session regulations as to printing, 
 boxing, &c, lli«> appeal is hold to be abandoned, and the Clerk 
 of Court re-transmits the process to the Sheriff Court, where 
 decree is given against the appellant for expenses, fixed in 
 practice at three guineas, although the Court has a discretion 
 to allow (axed expenses in the usual way. 
 
 Act of Sederunt, 5th Jan., 1909. M'Guire v. Union Cold Storage 
 
 Company, Limited, 1909, S.L. 
 384. 
 
 ... Effect of Appeal. 
 
 725. The noting of an appeal submits to review not only 
 the judgment which is more immediately complained of, but 
 also the whole prior interlocutors pronounced in the cause. 
 An appeal upon the merits of a cause precludes the judge 
 whose interlocutor has been submitted to review from issuing 
 any further interlocutors in the process, unless and until the 
 cause is remitted back to him from the appellate Court; but 
 this general rule is subject to ths qualification that the Sheriff- 
 Substitute, or the Sheriff, as the case may be, whose judgment 
 has been appealed against retains power " to regulate all 
 " matters relating to interim possession, to make any order 
 " for the preservation of any property to which the action 
 "relates, or for its sale if perishable, or for the preservation 
 " of evidence, or to make in his discretion any interim order 
 " which a due regard to the interests of the parties may 
 "require." Thus, notwithstanding an appeal, a subject in 
 dispute may be ordered to be deposited for safe custody, or a 
 perishable article, or an animal, to be sold, or a fund in medio 
 to be consigned, or the like. Xor does an appeal prevent any 
 party in the cause from obtaining an order to take, to lie in 
 retentis, evidence in danger of being lost, owing to delay 
 pending the disposal of the appeal or otherwise. 
 
 Appendix, s. 29, Rules, 74, 77, Trainer v. Renfrewshire District 
 
 91. Committee, 1907, S.C. 1117. 
 
 7 Ed. VII. c. 51, s. 29, Sch. I., 
 Rules 74, 77, 91. 
 
 72G. The noting of an appeal has the effect of suspending 
 diligence in execution, but does not preclude the use of 
 diligence in security. Thus arrestment on the dependence of
 
 KITK< T OF AIM'KAL 307 
 
 an action, if otherwise competent, is not affected by an appeal, 
 nor does the noting of an appeal interfere with the execution 
 of a warrant of sequestration for rent, or a warrani to inventory 
 effects. Nor does it a licet an interim interdict, which, 
 although appealed against, is binding till recalled. 
 
 Appendix, s. 29. 7 Ed. VII. c. 51, s. 29. 
 
 727. In any appeal, expenses should be moved for, because, 
 if the interlocutor of the appellate Court is silent as to 
 expenses, it does not carry expenses. Thus, where the 
 Sheriff's judgment decerns in favour of one party, and finds 
 him entitled to expenses, and the appellate Court simply affirms 
 that judgment, without mention of the appeal expenses, the 
 successful party cannot recover the expenses of the appeal. 
 
 Macdonald v. M'Eachan, 1880, 7 R. 574. 
 
 6. Time of Appeal. 
 
 728. The Sheriff Courts Act, 1907, made some alterations, 
 in the interest of uniformity, as regards the time within which 
 appeals may be taken. It also created a distinction, not 
 formerly recognised, between a final judgment and an inter- 
 locutory judgment. The Act of 1876 had allowed one month 
 for appeal to the Sheriff against a final judgment of the 
 Sheriff-Substitute, unless the judgment had been extracted, 
 as it might be in fourteen days, or earlier if so allowed. The 
 Court of Session Act of 1808 allowed six months for appeal to 
 the Court of Session, against a final judgment pronounced in 
 the Sheriff Court, and superseded extract for twenty days. 
 Both these enactments were repealed by the Sheriff Courts 
 Act, 1907, and uniform periods of three months for a final 
 judgment, and fourteen days for an interlocutory judgment, 
 adopted as the times within which it is competent to note an 
 appeal, whether from the Sheriff-Substitute to the Sheriff, or 
 from either to the Court of Session. The time runs in all cases 
 from the date of the interlocutor which is appealed against 
 (that is, from the date of its entry in the Court books), except 
 in the case of interim interdict, in which the fourteen days 
 count, not from the date of the interlocutor, but from the date 
 of intimation thereof. Appeal is competent at all only if 
 the judgment " shall not sooner have been extracted or imple- 
 " mented," and judgment is extractable in a summary cause
 
 308 APPEAL. 
 
 alter the lapse of seven days, and in an ordinary action after 
 
 the lapse of fourteen days, or in either after the lapse of such 
 
 shorter period as the Sheriff may fix as the time for giving out 
 
 an extract. Accordingly, appeal may be precluded, unless it 
 
 is noted, in a summary cause within seven days, and in an 
 
 ordinary action within fourteen days, or in either within such 
 
 time as the Sheriff may specially fix as the exact period. 
 
 Appendix, Rules 85, 86, 92. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 39 & 40 Vict, c 70, s. 32. 33. '85, 86, 92. 
 
 31 & 32 Vict. c. 100, s. 67, 68. 
 
 729. The Sheriff has not power to prorogate the time for 
 
 noting an appeal. He cannot even indirectly do so, by 
 
 extending the period for extract. The statute invests the 
 
 Sheriff with a discretionary power to allow extract at an earlier, 
 
 but not at a later, date than the normal seven days in a 
 
 summary cause, and fourteen days in an ordinary action. It 
 
 does not empower him to extend the extract period, as in the 
 
 case of inducise of service, which the Sheriff may either shorten 
 
 or extend. The extract period is reckoned from the date of 
 
 entry of the judgment in the Court books. 
 
 Appendix, Rules 83-86. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 83, 85, 86. 
 
 7. AprEALABLE JUDGMENTS. 
 
 730. A final judgment of the Sheriff-Substitute may be 
 submitted to review of the Sheriff, subject to any statutory 
 bar or limitation of appeal. A final judgment of either the 
 Sheriff-Substitute or the Sheriff may be appealed to the Court 
 of Session, subject to the value restriction of the Sheriff Courts 
 Acts. A final judgment is defined by the Sheriff Courts 
 Act, 1907, to mean " an interlocutor which by itself, or taken 
 " along with previous interlocutors, disposes of the subject- 
 " matter of the cause, notwithstanding that judgment may not 
 
 have been pronounced on every question raised, and that 
 " expenses found due may not have been modified, taxed, or 
 " decerned for." hut the question of liability for expenses 
 must have been dealt with, before an interlocutor becomes an 
 appealable final judgment. 
 
 Appendix, s. 3 (h), 27, 28. Caledonian Railway Company v. 
 
 7 Ed. VII. c. 51, s. 3 (h), 28. Glasgow Corporation, 1900, 2 
 
 Burns v. Waddell, 1897, 24 R. F. 871. 
 
 325. Garrioch v. Glass (1910), 1911, 
 
 S.C. 453.
 
 APPEALABLE JUDGMENTS. 309 
 
 731. A judgment which is not final is known as an inter- 
 locutory judg'inent. Of these several are appealable to the 
 Sheriff only, others are appealable either to the Sheriff or to 
 the Court of Session. An interlocutor of the Sheriff-Substitute 
 granting or refusing 1 interdict, if not a final judgment, is 
 appealable only to the Sheriff. Thus there is no appeal beyond 
 the Sheriff against an interlocutor granting or refusing interim 
 interdict, for that is not a final interlocutor, and it is not 
 included amongst the interlocutory judgments which are 
 appealable to the Court of Session. Of course, such an inter- 
 locutor comes under review ultimately, if an appeal is subse- 
 quently taken against a final judgment, but by that time it 
 may be too late to remedy the mischief caused by an interim 
 interdict. In making a craving, therefore, for interim inter- 
 dict, this limitation in the matter of appeal should be kepi in 
 view, together with the fact that a person making wrongous 
 use of the process of interdict (especially an interim interdict 
 granted, as it often is, upon an ex parte statement) may render 
 himself liable in damages, and that, in an action of damages 
 for wrongous use of interdict, it is not necessary to aver malice, 
 or even to challenge the accuracy of the statements in the writ 
 upon which the interim interdict was granted, but that it is 
 sufficient to aver that the interdict was wrongously sought, to 
 the complainer's prejudice. 
 
 Appendix, s. 27, 28. Buchanan v. Douglas, 1853, 15 
 
 7 Ed. VII. c. 51, s. 27 (a), 28. D. 365. 
 
 2 & 3 Geo. V. c. 28, s. 2. Abel's Executors v. Edmond, 
 
 1863, 1 M. 1061. 
 
 732. An interlocutory order ad factum prcestandum is not, 
 except by leave, appealable beyond the Sheriff. Thus, an 
 interlocutor ordering a party to sist a mandatory, or to find 
 caution, or to make production, or to consign or deposit a 
 fund or subject for its preservation or safe custody, or the like, 
 is not, without leave, granted at the time it is pronounced, 
 directly appealable to the Court of Session, but only to the 
 Sheriff. But such interlocutory judgments are in the end sub- 
 ject to review, if appeal is taken against the final judgment. 
 Many such interlocutors, however, are indirectly brought wit hi i 
 the review of the Court of Session by the action being sisted till 
 the order ad factum prcestandum has been complied with, an 
 interlocutor sisting an action being amongst those appealable 
 to the Court of Session. If the action is not sisted, review of
 
 310 APPEAL. 
 
 some interlocutory orders might possibly be obtained by 
 
 suspension. 
 
 Appendix, s. 27-29. 7 Ed. VII. c. 51, s. 27 (b), 28, 
 
 29. 
 
 733. An interlocutor allowing-, or refusing, or limiting the 
 mode of proof is an interlocutory judgment of the Sheriff- 
 Substitute, appeal against which is directly competent only 
 to the Sheriff; but, if the value of the cause exceeds £50, the 
 Sheriff-Substitute may grant leave to appeal to the Court of 
 Session ; or the Sheriff on appeal may certify the case for 
 appeal to the Court of Session. 
 
 Appendix, s. 27, 28. Wilson v. Brackenridge, 1888, 
 
 7 Ed. VII. c. 51, s. 27 (d), 28 15 R. 587. 
 
 (c). 
 
 734. An interlocutor which merely fixes the date, or alters 
 the date, for taking a proof which has already been allowed, 
 is not an appealable interlocutor. But if an order for proof 
 has been discharged, and therefore it becomes necessary of 
 new to allow a proof, that is a new judgment allowing proof, 
 and so is appealable. 
 
 Falconer v. Shields & Co., 1827, Kimies v. Fleming, 1881, 8 R. 
 
 5 S. 853. 386. 
 
 735. Although the documents themselves, when recovered 
 under a diligence, may be put in evidence, an interlocutor 
 granting or refusing diligence to recover these documents is 
 not an interlocutor allowing or refusing proof, and so is not 
 appealable without leave. 
 
 Stewart v. Kennedy, 1890, 17 R 755. 
 
 736. The interlocutory judgments which may be appealed 
 from the Sheriff-Substitute to the Sheriff are (a) interim 
 interdict, (b) interim payment, (c) sisting. The interlocutory 
 judgments of the Sheriff which may be appealed to the Court 
 of Session are (b) and (c), subject to the qualification of the 
 1913 Act as regards value and certification. An appealable 
 money decree means a judgment the effect of which is to 
 entitle a pursuer to recover by diligence, or, if consigned, to 
 have handed over to him, or in some way to have taken from 
 the defender and given to pursuer, some portion of that
 
 APPEALABLE JUDGMENTS. 311 
 
 money of which payment is craved in the initial writ. An 
 interlocutor merely placing money sued for in neutral custody, 
 as, for instance, an order to consign, is not an appealable 
 decree for payment of money. It is an order ad factum 
 prcestandum. 
 
 Appendix, s. 27, 28. Sinclair v. Baikie, 1884, 11 11. 
 
 7 Ed. Vll. c. 51, s. 27 (/;), (<), 413. 
 
 28 (a), (b). Maxton v. Bone, 1886, 13 R. 
 
 Baird v. Glendinning, 1874, 2 912. 
 
 R. 25. M'Lintock v. Prinzen, &c, 
 
 1902, 4 F. 948. 
 
 737. It frequently happens that what is, in form, a non- 
 appealable interlocutory judgment, really disposes of the 
 whole, or the main, issue in the cause. Any hardship, how- 
 ever, which might in such a case arise from the limitation 
 of the statutory list of appealable interlocutors, is obviated by 
 the broad statutory power of granting leave to appeal against 
 any interlocutor which is in its nature appealable. This power 
 is conferred both upon the Sheriff-Substitute and the Sheriff, 
 and does not necessarily require to be exercised on the formal 
 motion of a party. Appeal is competent, whether from the 
 Sheriff-Substitute to the Sheriff, or from either to the Court 
 of Session, if the Sheriff-Substitute or the Sheriff, " either ex 
 " yroprio motu or on the motion of any party, grants leave to 
 " appeal." 
 
 Appendix, s. 27, 28. 2 & 3 Geo. V. c. 28, s. 2. 
 
 7 Ed. Vll. c. 51, s. 27, 28. 
 
 8. Summary Cause Appeal. 
 
 738. The " summary cause " created by the Sheriff Courts 
 Act, 1907, was by that statute somewhat unfortunately treated 
 as regards appeal rights. There was no right of appeal direct 
 from the Sheriff-Substitute to the Court of Session, as there 
 was in an ordinary action process. Appeal was competent to 
 the Court of Session only by leave of the Sheriff, and only 
 upon questions of law stated by him. The right of appeal from 
 the Sheriff-Substitute to the Sheriff, however, was as ample as 
 that in an ordinary action process, provided the evidence had 
 been recorded. 
 
 7 Ed. VII. c. 51, s. 8. 
 
 739. The summary cause appeal to the Court of Session
 
 312 APPEAL. 
 
 was far from being lucidly expressed in the Sheriff Courts 
 Act, 1907, and gave rise to much dubiety. That has been 
 removed by the Act of 1913, which repealed the special appeal 
 provision of the 1907 Act for a summary cause. It accordingly 
 now falls within the general appeal provisions, including the 
 restrictions as regards appeal to the Court of Session in actions 
 not exceeding £50 value. 
 
 Appendix, s. 8, 27, 28. 2 & 3 Ceo. V. c. 28, s. 2. 
 
 7 Ed. VII. c. 51, s. 8. 
 
 740. Appeal in a summary cause is still subject to the 
 qualification that it is only where the evidence has been 
 recorded that there is an appeal upon fact and law. If the 
 evidence has not been recorded, the appeal is upon law only. 
 
 Appendix, s. 8. 7 Ed. VII. c. 51, s. 8. 
 
 741. Under a narrow reading of the 1907 Act it was sug- 
 gested that it contemplated appeal against one form of inter- 
 locutor only in a summary cause, namely, that pronounced 
 by the Sheriff-Substitute after proof; but that, it is thought, 
 was an altogether too narrow reading, even upon the 1907 Act, 
 and it is not a possible reading now, in view of the changes 
 made by the 1913 Act, although no doubt the scheme of the 
 original " summary cause " was, broadly speaking, that the 
 procedure should be expeditious, and that, before any appeal 
 was taken, the Sheriff-Substitute should have exhausted the 
 whole case, and given his final judgment. 
 
 Appendix, s. 3 (i), 8, Rule 41. 7 Ed. VII. c. 51, s. 8. 
 
 742. In the vast majority of summary causes this was a 
 quite practical scheme, for the sums sued for were mainly 
 traders' accounts. But the summary cause has now a much 
 wider application, and covers cases where of necessity inter- 
 locutory judgments must be pronounced, as well as cases where 
 final judgment does not proceed upon proof. 
 
 Appendix, s. 3 (?'). 
 
 743. Appeal against an interlocutory judgment, or a judg- 
 ment on other grounds than evidence, is not expressly excluded, 
 and the Sheriff-Substitute has an absolutely free hand as
 
 SUMMARY CAUSE APPEAL. 313 
 
 regards procedure in a summary cause process. Ee lias a 
 general power to grant leave to appeal to the Sheriff against 
 any interlocutor, and the appeal provisions do not exclude either 
 an interlocutory judgment, or a final judgment pronounced in a 
 summary cause. 
 
 Appendix, s. 27, 28. 
 
 744. A defender in a summary cause, just as in an ordinary 
 action, may successfully plead that the Court has no jurisdic- 
 tion, or thai the pursuer has no title to sue, or that the pursuer 
 is barred from suing that particular action, or that on some 
 ground the action should be dismissed, or that the defender is 
 entitled to absolvitor. A judgment of the Sheriff-Substitute 
 dismissing an action because the Court has no jurisdiction to 
 entertain it, or because the pursuer has disclosed no title to 
 sue, or because the action is barred, or is irrelevant, or the 
 like, is no doubt a judgment in a summary cause where the 
 evidence has not been recorded (for the very good reason that 
 no evidence was led, and no evidence was necessary to enable 
 the Court to deal with the plea). But it is a final judgment, 
 and, as such, is subject to review. 
 
 Appendix, s. 8, 27, 28, Rule 41. Cranston v. Mallow & Lien, 
 
 7 Ed. VII. c. 51, s. 8. 1911, S.C. 1133. 
 
 Stevenson v. Sharp, 1910, S.C. 
 580. 
 
 745. Even if there is still any room for doubt, appeal would 
 still be competent, upon the principle that when a situation 
 arises in a summary cause process which is not covered by the 
 special enactments for a summary cause, that is a casus 
 imj)rovisus , to which the general provisions of the Sheriff 
 Court Acts are applicable, including the appeal provisions. 
 
 Duke of Argyll v. Muir, 1910, S.C. 96. 
 
 746. Even when an action is not disposed of on preliminary 
 pleas, in a summary cause, as in an ordinary action, proof is 
 not always taken. The case may, for instance, be decided upon 
 admitted facts, or upon documents produced, or upon a report 
 by a man of skill, or otherwise than upon oral testimony. The 
 Sheriff-Substitute is required in a summary cause, as in an 
 ordinary action, to separate his findings in fact and in law.
 
 314 APPEAL. 
 
 When the facts are found by the Sheriff-Substitute upon 
 admissions, of course the appellate Court will accept the 
 findings in fact. Its function is only then to decide whether 
 the law has been properly applied to the facts. An appeal, 
 accordingly, often is an appeal on law only, for other reasons 
 than that there has been no recorded proof. 
 
 Appendix, s. 8. Rule 82. 7 Ed. VII. c. 51, s. 8, Rule 82. 
 
 747. As regards the mode of appeal, there are no special 
 directions in the statutes applicable to a summary cause, and 
 such were not necessary, for Rule 82 of the 1907 Act applies to 
 <iU interlocutors, whether pronounced in a summary cause, or 
 in an ordinary action. In a final judgment, therefore, in a 
 summary cause, as in an ordinary action, the findings in 
 fact and the findings in law must be set forth separately, and 
 the interlocutor must be accompanied by a note setting forth 
 the grounds of the judgment. The separation of findings in 
 fact and in law was originally a direction of an Act of Sederunt 
 of loth February, 1851. None of the Sheriff Court Acts prior 
 to 1853 had given any direction as to the form of final judg- 
 ment, although, in practice, findings in fact and law were 
 separately stated. The Sheriff Court Act of 1853 added the 
 direction that the grounds of judgment should be set forth in 
 a note. These directions of 1851 and 1853, which are preserved 
 in the Act of 1907, assume a greater importance than they 
 previously had, by the creation in the recent statutes of the 
 summary cause, for in a summary cause there may not be, and 
 in most cases there is not, any formal record, and the whole 
 case submitted to the appellate Court will be expressed in 
 the judgment oi the Court below. 
 
 Appendix, s. 8, Rules 41, 82. 2 & 3 Ceo. V. c. 28. Sch. II. 
 
 16 c% 17 Vict. c. 80, s. 13. Act of Sederunt, 15th Feb., 
 
 7 Ed. VII. c. 51, s. 8, Sch. I., 1851. 
 Rules 41, 82. 
 
 748, In a summary cause, as in an ordinary action, appeal 
 may be precluded by extract, and it is to be borne in mind 
 that in a summary cause extract may be given out after the 
 lapse of seven days. The seven days within which leave to 
 appeal may be moved for, does not affect the extract period. 
 The two periods of seven days run concurrently from the date
 
 SUMMARY CAUSE APPEAL. 315 
 
 of the judgment, so that the period within which appeal in 
 a summary cause cannot be defeated is only seven days. The 
 procedure otherwise is the same as in an ordinary action. 
 
 Appendix, Rules 85, 86. 7 Ed. VII. c. 51, s. 8, Seh. I., 
 
 Rules 85, 86. 
 
 9. Incidental Appeals. 
 
 749. Reference lias already been made to appeal- from 
 the Sheriff-Substitute to the Sheriff against interlocutors (a) 
 transferring a cause from one sheriffdom to another; (b) 
 deciding a question of competency of evidence, which are 
 competent appeals only if taken within seven days of the date 
 of the interlocutor remitting, or the date of the close of the 
 proof, as the case may be, and are directed to be summarily 
 disposed of by the Sheriff, whose decision is final. 
 
 Appendix, Rules 20, 75, 76. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 20, 75, 76. 
 
 10. Appeal for Jury Trial. 
 
 750. A form of "appeal," so-called, the effect of which 
 is not review of a Sheriff Court judgment, but the removal 
 permanently of a cause from the Sheriff Court to the Court 
 of Session, was introduced by the Judicature Act of 1825. 
 This was conirnonly referred to as an appeal for jury trial, 
 but the Sheriff Courts Act, 1907, more correctly terms it 
 "Removal of cause to Court of Session for jury trial," and 
 the form which it takes is not a note of appeal, but a minute 
 written upon the principal interlocutor sheet. Originally, 
 when the claim made in a Sheriff Court action exceeded £40, 
 it was competent to any party to require the cause to be 
 remitted to the Court of Session for jury trial. Under the 
 Sheriff Courts Act, 1907, this right of appeal has been pre- 
 served, but it does not necessarily follow that the cause will 
 be tried by jury, for the Court of Session is invested with a 
 discretion, if the case is not deemed suitable for jury trial, 
 (a) to remit it back to the Sheriff Court; (b) to remit it to a 
 Lord Ordinary to proceed as if it had been originally raised in 
 the Court of Session; or (c) to send it for proof before a judge 
 of the Division to which the appeal has been noted. When 
 this statutory privilege was originally granted, the determina-
 
 316 APPEAL. 
 
 tion as to whether an action should be tried by jury was 
 vested in ihe party who took the appeal. But the privilege 
 \\;i> very liable to abuse, and ihe determination of whether a 
 case is suitable for jury trial now rests, as it should always 
 have rested, not with Hie litigant, but with the Court. 
 
 Appendix, s. 30, Rule 95. Sharpies v. Yuill, 1905, 7 F. 
 
 6 Geo. IV. c. 120, s. 40. 657. 
 
 7 Ed VII. c. 51, s. 30, Sch. I., Dawson v. Stewart & Shaw, 
 Rule 95. 1905, 7 F. 659. 
 
 Act of Sederunt, 14th April, Smellie v. Whitelaw, 1907, 44 
 
 "1908. S.L.R. 586. 
 
 751. Appeal to the Court of Session for jury trial was 
 
 originally competent in every kind of action where a claim was 
 
 made exceeding £40, but it was most commonly resorted to in 
 
 actions claiming damages for personal injury. This class of 
 
 action greatly increased in the Sheriff Courts, after the passing 
 
 of the Employers' Liability Act of 1880, and, both in common 
 
 law and statutory actions, the occasions became increasingly 
 
 numerous in which, as the Act of 1825 expressed it, the pursuer 
 
 " conceives that the cause ought to be tried by a jury." The 
 
 abuse of the privilege of appeal for jury trial, indeed, became 
 
 so obvious that the passing of the Workmen's Compensation 
 
 Act of 1906 was made the occasion of altogether withdrawing 
 
 the privilege, as regards actions raised by employees under 
 
 the Employers' Liability Act, or alternatively under that Act 
 
 and at common law. As regards all other actions, the old 
 
 right of appeal for jury trial has been preserved in the recent 
 
 statutes, subject to the raising of the value limit from £40 
 
 to £50 (to correspond with the privative jurisdiction limit), 
 
 and subject also to the veto of the Court of Session before 
 
 referred to, if, in their opinion, the cause is not suitable for 
 
 jury trial. As regards the statutory compensation actions 
 
 which have been deprived of the privilege of appeal to the Court 
 
 of Session for jury trial (extended by the Act of 1913 to include 
 
 also actions by employees laid at common law), a new system 
 
 of trial by jury in the Sheriff Court has been substituted. 
 
 Appendix, s. 30-33, Rules 133- 7 Ed. VII. c. 51, s. 30, 31. 
 
 150. Laurie v. Banknock Coal Com- 
 
 6 Geo. IV. c. 120, s. 40. pany, 1911, S.C. 817. 
 
 6 Ed. VII. c. 58, s. 14. 
 
 752. It is not now competent to remove a cause from the 
 Sheriff Court to the Court of Session for jury trial, unless (a)
 
 Al'I'KAL FOR JURY TRIAL. 317 
 
 the claim is in amount or value above £50, and (b) an order has 
 been pronounced allowing- proof. 
 
 Appendix, s. 30 Henderson v. Grant, 1896, 23 
 
 7 Ed. VII. c. 51, s. 30. R. 659. 
 
 753. Appeal for jury trial is not competent unless and 
 
 until an order lias been pronounced allowing proof "/' the merits, 
 
 as distinguished from an interlocutor allowing- proof to be 
 
 taken to lie in retentis, or ordering proof on a plea in bar, or 
 
 the like. When an interlocutor allowing- proof has been 
 
 pronounced by the Sheriff-Substitute, and is under appeal to 
 
 the Sheriff, it is not competent to remove the case to the Court 
 
 of Session for jury trial. But, if such an interlocutor is 
 
 intended to be appealed to the Sheriff, the appeal should be 
 
 noted within six days, for appeal for jury trial is precluded it' 
 
 the intending- appellant allows more than six days from the 
 
 date of the interlocutor allowing- proof to elapse without having 
 
 lodged his minute craving the removal of the cause to the 
 
 Court of Session for jury trial. The statute contains no 
 
 authority to prorogate the time for lodging the minute, unless 
 
 it falls within the general term " pleading " used in Rule 56, 
 
 which, it is thought, it does not. If, therefore, the requisite 
 
 procedure is not timeously taken, the right of obtaining trial 
 
 by jury falls. 
 
 Appendix, s. 30. M'Arthur v. Boucher, 1887, 15 
 
 7 Ed. VII. c. 51, s. 30, Sch. I., R. 117. 
 
 Rule 95. Hillhouse v. Walker, 1891, 19 
 
 Shirra v. Robertson, 1873, 11 R. 47. 
 
 M 660 Ellerman Lines r. Clyde Trust, 
 
 1909, S.C. 690. 
 
 754. If proof has already been taken in the Sheriff Court, 
 or if a remit has been made of consent to a man of skill, upon 
 any part of the merits of the cause, that precludes appeal for 
 jury trial; but, if no proof has been led in the Sheriff Court, 
 it appears to be competent, although obviously inconvenient, 
 to take such an appeal upon an order granted in the Sheriff 
 Court allowing proof before answer upon part only 
 of the merits of the case as set forth on record. Where, how- 
 ever, a proof before answer has been allowed of consent, it is 
 not competent for either party to appeal for jury trial. 
 
 .M'Cill v. M'Ara, 1832, 10 S. Conroy v. Inglis, 1895, 22 R. 
 
 552. 621. 
 
 Tulloch v. MTntosh, 1838, 16 Paterson v. Kidd, 1896, 23 R. 
 
 S. 983. 737.
 
 318 APPEAL. 
 
 11. Disposal of Appeals. 
 
 755. The rules of pleading which ore applicable in the 
 conduct of a cause before the Sheriff-Substitute, apply 
 generally also in the conduct of an appeal before the Sheriff. 
 Usually parties are orally heard, but an oral hearing is not 
 essential, for, under the Sheriff Courts Acts, 1907-1913, "the 
 " Shcri IT may order a reclaiming petition and answers, or may 
 " hear parties orally " ; and, if all parties agree, he may even 
 dispose of the appeal without either an oral hearing or written 
 pleadings. In this respect, procedure before the Sheriff on 
 appeal differs from that before the Sheriff-Substitute, the 
 statutory direction there being peremptory that, "at the close 
 " of the proof or at an adjourned diet, if for any reason the 
 " Sheriff shall see fit to postpone the hearing, the Sheriff slmll 
 " hear parties or their agents." This direction, however, is 
 imperative only in the case where proof has been led, although 
 in practice there is a hearing in all cases, before final judgment 
 is pronounced. A hearing is not essential before the Sheriff 
 on appeal, in the case of the incidental appeals as to competency 
 of evidence, or confidentiality of documents, the simple direc- 
 tion in regard to these being that the Sheriff is to dispose of 
 such appeals with the least possible delay and, in his option, 
 " with or without a hearing." 
 
 Appendix, Rules 75, 76, 89, 90. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 75, 76, 89, 90. 
 
 756. The procedure in an appeal from the Sheriff Court to 
 t lie Court of Session is regulated by the Court of Session Act, 
 1868, and relative Acts of Sederunt. When the process has 
 been transmitted, the date of its reception is marked on it 
 by the clerk of the Appeal Court, and the duty involves upon 
 the appellant (unless printing is dispensed with) of printing 
 and boxing the note of appeal, record, interlocutors, and proof 
 within fourteen days during session, and in vacation on the 
 first box-day after expiry of the fourteen days, the prints 
 being deposited with the clerk within fourteen days. If the 
 appellant fails timeously to box, the respondent may do so 
 within eight days after the appellant has failed, otherwise 
 the appeal is held abandoned, the judgment complained of 
 becomes final, and the process is returned to the Sheriff-clerk, 
 with a certificate of abandonment, which entitles the respon-
 
 DISPOSAL OF APPEALS. 319 
 
 dent to decree against the appellant for three guineas of 
 expenses. But within the eighl days the appellant may be 
 reponed. 
 
 31 & 32 Vict. c. ICO, s. 71. Act of Sederunt, 5th Jan.. 1909. 
 
 A.t of Sederunt, 10th March, 
 1870. 
 
 757. An appeal, whether to the Sheriff or to the Court of 
 Session, once il has been noted, must be disposed of, unless it 
 is abandoned, which it may be only of consent of all parties 
 interested or by leave of the Court. The expression " noted " 
 in Bule 96 of the Sheriff Courts Act, 1907, obviously refers to 
 the dale of the writing upon the interlocutor sheet by a party 
 of the note of appeal prescribed by Utiles 87 and 93. Doubt 
 has been expressed as to whether it means the date of the 
 reception by the clerk of the Appeal Court of the transmitted 
 process. But, in the language of the Court of Session Act, 
 the date of the marking by the clerk of the Appeal Court of 
 the date upon which he receives the transmitted process is not 
 itself a note of appeal, but merely a clerical "note of the day 
 "on which it [i.e., the note of appeal] is received." Once 
 the appellant or his agent has signed the note of appeal, 
 whether anything has been done upon it or not, the appellant 
 must obtain the leave of the Court or the consent of the other 
 parties before he can withdraw it. An apparent difficulty 
 presents itself in working out Rule 96 when the appeal is to 
 the Court of Session, for it is the consent of the appellate 
 Court that is requisite, and, strictly speaking, the cause is 
 not before the appellate Court for consideration at all until 
 it has been boxed in terms of the Act of Sederunt. The 
 difficulty, however, is technical, and apparent, rather than 
 real, for, if the appellant do not proceed with his appeal, he 
 is held to have abandoned it, and in that event the judgment 
 complained against automatically becomes final, unless some 
 other party adopts the appeal, and insists in it, as, under the 
 Sheriff Courts Act, 1907, a party may do. In the majority 
 of cases, an appellant will accept this result, because he 
 cannot avoid it unless by prosecuting his appeal, but in an 
 occasional exceptional case he may, for technical reasons, 
 desire to abandon an appeal in order to bring a fresh one. and 
 so may not desire the judgment to become final. In this 
 event he must obtain the consent of the parties, or oi the 
 Court, and it is thought that, at least for this limited purpose,
 
 320 APPEAL. 
 
 although not yet boxed, the process is before the appellate 
 Court, whenever it has been received by the clerk of that 
 Court. 
 
 Appendix. Rules 87, 93, 96. Act of Sederunt, 10th March, 
 
 31 & 32 Vict. c. 100, s. 71. 1870. 
 
 7 Ed. VII. c. 51, Sch. I., Rules 
 87, 93, 96. 
 
 758. A vacancy occurring in the office of Sheriff does not 
 affect the right of appeal from the Sheriff-Substitute to the 
 Sheriff. Formerly some doubt existed as to this, when there 
 was no actual Sheriff in office to whom an appeal could be 
 noted ; but since 1877, when the Sheriff-Substitute ceased to 
 be the nominee of the Sheriff, and became an independent 
 Crown-appointed officer, the appeal sanctioned by the Sheriff 
 Court Act of 1853 has been regarded as competently noted, 
 even although at the moment the office of Sheriff was vacant. 
 The existing practice has been recognised, and all doubt on 
 the subject set at rest, by the express enactment of the Sheriff 
 Courts Act, 1907, that " notwithstanding the death, resigna- 
 " tion, or removal of a Sheriff, appeals may be taken from 
 " the judgment of the Sheriff-Substitute, which appeals shall 
 " be heard by the succeeding Sheriff when he shall enter upon 
 "office." 
 
 Appendix, s. 27 (Proviso). 7 Ed. VII. c. 51, s. 27. 
 
 12. Statutory Appeals. 
 
 759. When a statute confers jurisdiction upon a Court, in 
 general terms, the presumption is that a process brought under 
 the statute follows the usual course of procedure in that Court. 
 Accordingly, in the absence of express direction, or recognised 
 practice, to the contrary, any statutory jurisdiction conferred 
 upon the Sheriff Court (unless there is a right of appeal from 
 the Sheriff-Substitute to the Sheriff) may be exercised by the 
 Sheriff or by the Sheriff-Substitute, as the judge of first 
 instance, subject to review by the Court of Session, which has 
 a general right to review the judgments of all the inferior 
 Courts in Scotland. But, in statutory matters the Court of 
 Session will not in general interfere, unless it is alleged that 
 the inferior Court has exceeded its powers, or has deviated 
 from statutory directions. Where such statutory directions 
 import the Sheriff Court procedure rules, these rules,
 
 STATUTORY APPEALS. 321 
 
 as well as the directions of the special statute, must be 
 observed. For instance, where a special statute allows appeal 
 by way of stated case, and appeal is taken againsl an inter- 
 locutory judgment, it is not enough that the Sheriff sign a 
 stated case. lie must also formally grant leave to appeal. 
 
 Guthrie r. Miller. 1826, 5 S. Stricken Parish Council v. 
 
 711. Goodwillie, 1908, S.C. 835. 
 
 Balderstone V. Balderstone, Dumfries County Council v. 
 
 1841, 3 D. 597. Langholm Magistrates, 1912, 
 
 Portobello Magistrates v. 50 S.L.R. 209. 
 
 Edinburgh Magistrates, 1883, 
 
 10 R. 130. 
 
 760. The appeal enactments of the recent Sheriff Courts 
 Acts are qualified by the proviso that " any exclusion or allow- 
 " ance of appeal competent under any Act of Parliament in 
 "force for the time being shall not be affected." This 
 reservation applies more particularly to appeals in summary 
 applications authorised by statute to be brought, or in use to 
 be brought, in the Sheriff Court. This proviso, however, may 
 also affect applications which take the form of ordinary actions 
 in the Sheriff Courts, where the class of action has any statu- 
 tory privileges or limitations in the matter of appeal. 
 
 Appendix, s. 28. 2 & 3 Geo. V. c. 28, s. 2. 
 
 7 Ed. VII. c. 51, s. 26, Proviso. 
 
 761. Thus, under the Bankruptcy Acts, the judgment of 
 the Court awarding sequestration, although pronounced by the 
 Sheriff-Substitute, and following upon an initial writ, and in 
 form an interlocutor of Court, is not subject to review by the 
 Sheriff, but only to recall by the Court of Session. Nor are the 
 various interlocutors pronounced by the Sheriff-Substitute in 
 the course of a bankruptcy process subject to review by the 
 Sheriff, but a deliverance of the Lord Ordinary or the Sheriff- 
 Substitute may, if the statute makes it appealable, be reviewed 
 by the Court of Session, if a note of appeal is lodged with, and 
 marked by, the Sheriff-clerk within eight days of the date of 
 the deliverance. In a process of cessio there is an appeal 
 from the Sheriff-Substitute to the Sheriff, and a further appeal 
 to the Court of Session, only if a final judgment has been given 
 by the Sheriff-Substitute, either granting decree of cessio or 
 refusing it. 
 
 6 & 7 Will. IV. c. 56, s. 6, 8. 43 & 44 Vict. c. 34, s. 9 (4). 
 
 19 & 20 Vict. c. 79, s. 170. 
 
 21
 
 322 APPEAL. 
 
 762. So also, iii a service of heirs process, there is no 
 intermediate appeal to the Sheriff, but in competitive or 
 opposed case-, a party may, before proof lias been taken, 
 remove the cause to I lie Courl of Session for jury trial; and a 
 judgment of the Sheriff-Substitute refusing a service, or 
 dismissing :i petition, or repelling an objection of an opposing 
 party, may be broughl under review of the Court of Session 
 by note of appeal within fifteen days, or, if the proceedings 
 are in Orkney or Shetland, within twenty days of the date of 
 the judgment. 
 
 31 & 32 Vict. c. 101, s. 42. 
 
 763. Sometimes the appeal is peculiar, as, for instance, 
 under the Ecclesiastical Buildings and Glebes (Scotland) Act, 
 1868, if an appeal from the Presbytery lias been entertained by 
 the Sheriff-Substitute, there is no further appeal from him to 
 the Sheriff, but against the Sheriff-Substitute's orders or 
 judgments there is an appeal to the Lord Ordinary on Teinds . 
 causes, which must be taken by note of appeal within twenty- 
 one days of the order or judgment complained of, and the 
 judgment of the Lord Ordinary on Teinds is final. 
 
 31 & 32 Vict. c. 96. s. 14, 20. 
 
 7G4. Sometimes the very same question is, to one effect, 
 finally decided by the Sheriff, and to another effect is subject 
 to review, as, for instance, the question of legal liability for 
 the maintenance of a pauper lunatic. Under the Lunacy Act 
 of 1857, when a pauper lunatic is found in a parish and is 
 sent to an asylum, the parish in which he is found is, in the 
 first instance, liable for the expense. But that parish may 
 recover from any other parish, or party, legally liable, and 
 for this purpose may require the Sheriff of the district of the 
 disbursing parish to certify the expense incurred. This 
 certificate is not subject to review, although it is the basis of a 
 claim against the parish or party liable in relief, in which 
 claim also the Sheriff's judgment is final. But whilst appeal 
 is precluded, as in questions between parishes, or a parish 
 and a party, concerning a lunatic's maintenance, the statutory 
 refusal of appeal does not, apply to the same kind of question as 
 between a District Lunacy Board and a parish. 
 
 20 & 21 Vict. c. 71. Roxburgh, &c, District Lunacy 
 
 Board v. Selkirk Parish 
 Council, 1902, 4 F. 468.
 
 STATUTORY APPEALS. 323 
 
 7<i~>. Wlirn a statute directs that a matter shall be 
 Bummarily disposed of by the Sheriff, win nomination 
 
 shall be final, there is qo appeal, even it the judgmenl is not 
 Bummarily disposed of , bu1 is pronounced upon a formal record, 
 and after a proof. Even in a summary statutory process, 
 formal procedure is often iry, and sometimes prolonged. 
 
 Hut there is only one judgment. Either the Sheriff or the 
 Sheriff-Substitute may determine the matter committed by 
 statute to the Sheriff, but the determining judgment is not 
 subject to review. 
 
 35 & 36 Vict. c. 62. s. 14. Sorn School Board r. Bone, 13 
 
 R. 768. 
 
 766. An action may be one of a class in regard to which 
 appeal is precluded, or restricted, and yet, by force of special 
 statutory enactment, appeal may bo competent in a particular 
 case of that class. Titus, although appeal under the Small 
 Debt Acts is limited to review upon certain grounds by the 
 Court of Justiciary, under other express statutory enactments 
 it may be expanded, as, for instance, a dispute between a 
 member of a friendly society and the society might take the 
 form of a Small Debt action, but either party might be entitled 
 to ask the Court to state a case for the opinion of a 
 Division of the Court of Session. In like manner, as regards 
 a summary removal, the Sheriff Courts Acts, 11)07-1913, 
 expressly declare that such causes shall be conducted and 
 disposed of in the summary manner in which proceedings are 
 conducted under the Small Debt Acts, and shall not be subject 
 to review. But this is qualified by the provision of the 
 same statutes, that if there arc formal pleadings in a summary 
 removing process, it becomes an ordinary action of removing-, 
 which '* shall he subject to review in common form." 
 
 Appendix, Rules 119, 122. 2 & 3 Geo. V. c. 23, Sch. II. 
 
 1 Vict. c. 41. s. 31. Linton v. City of Glasgow 
 
 59 & 60 Yict. c. 25. s. 65 (6). Friendly Society, 1895, 23 R. 
 
 (7). 51. 
 7 Ed. VII. c. 51, Sch. I., Rules 
 
 119-122. 
 
 767. When the Sheriff acts in an administrative, not in a 
 judicial, capacity, his decision is final, although in form it 
 may be a judgment following- upon an initial writ, and perhaps 
 following- upon a formal record and proof. For instance, where 
 such a statute as a private "Railway Act provides that differ-
 
 324 A 1' PEAL. 
 
 ences arising- in the course of construction shall be settled 
 by an arbiter nominated by the Sheriff, and the Sheriff upon 
 application nominates an arbiter, his nomination of such 
 statutory arbitrator is an administrative act, not a judicial 
 pronouncement, and is not subject to review. 
 
 Glasgow District Subway Company v. Glasgow Corporation, 
 1893, 21 R. 52. 
 
 768. An appeal, which would have been otherwise com- 
 petent, may be restricted, or precluded, by want of compliance 
 with some statutory requisite, or want of material, upon which 
 a cause may be argued on appeal, as, for instance, the absence 
 of a record of the evidence. Under the Sheriff Courts Acts, 
 1907-1913, this reduces the appeal to the Sheriff in a summary 
 cause from a full appeal upon fact and law, to an appeal upon 
 law only. So also, under the Merchant Shipping Acts, when 
 a salvage claim does not exceed £300, disputes in regard to 
 it may in Scotland be determined by the Sheriff summarily. 
 It is not essential to make up a formal record, or to keep an 
 official record of the evidence, but the Sheriff's judgment is 
 subject to review only if the evidence has been recorded. 
 
 57 & 58 Vict. c. 60, s. 547, 549, Sinclair v. Spence, 1883, 10 R. 
 
 709. 1077. 
 
 7 Ed. VII. c. 51, s. 8. 
 
 769. In the great majority of the numerous statutes con- 
 ferring jurisdiction upon the Sheriff, either to operate the 
 statute itself, or to enforce bye-laws and regulations made by 
 public bodies under the authority of the statute, the decision 
 of the Sheriff-Substitute or the Sheriff, as the case may be, 
 who disposes of the case is a final decision. But it is not so 
 always, and some curious appeal provisions are to be found in 
 some of the older statutes. Even in one so modern as the 
 Public Health Act of 1897 there are some exceptional appeal 
 privileges, amongst them being a unique arrangement whereby 
 review by a Division of the Court of Session of certain decisions 
 of the Sheriff-Substitute, or Sheriff, may be obtained by leave 
 of the Lord Ordinary on the Bills. 
 
 60 & 61 Vict. c. 38, s. 16 (9), (10), (11), 32, 156, 157. 
 
 770. Such exceptional enactments as these which have been 
 instanced may occasionally also themselves be qualified by the
 
 STATUTORY APPEALS. 325 
 
 general provision of the Summary Prosecutions Appeals Act of 
 1875, or the Summary Jurisdiction Act, 1908, which, if the 
 proceedings include prosecution for an offence or the recovery 
 of a penalty, makes the Sheriff's judgment subject to the 
 review of the Supreme Court, upon questions of law, by way of 
 stated case. 
 
 38 & 39 Vict, c. 62. 8 Ed. VII. c. 65. 
 
 771. It is much to be regretted that the recent legislative 
 opportunity was not taken to have all varieties of appeal privi- 
 leges merged in some uniform system of appeal, but the Sheriff 
 Courts Acts, 1907-1913, have not dealt with this phase of 
 consolidation of statutory enactments, and the illustrations 
 above adverted to sufficiently indicate the danger of assuming 
 that the appeal provisions of the Sheriff Courts Acts are of 
 universal application, and the necessity, where any action or 
 proceeding is under statute, of referring to the statute itself 
 for its exact provisions, and its possible process directions. 
 
 13. Stated Case Appeal. 
 
 772. This form of review is competent in certain proceedings 
 of a civil nature, but is mainly applicable to proceedings of a 
 criminal nature, the appeal in matters criminal being taken to 
 the High Court of Justiciary at Edinburgh, and in matters 
 civil to either Division of the Court of Session. The appeal is 
 restricted to questions of law set forth in a stated case. If this 
 form of appeal is adopted, or acquiesced in, any other form of 
 appeal which might be competent is held to be waived. 
 
 8 Ed. VII. c. 65, s. 60. 
 
 773. The scope of appeal by stated case is very wide in 
 criminal matters, for a " cause " in which such appeal is 
 competent is defined to include every proceeding which may be 
 brought under the Summary Jurisdiction Act, which means 
 practically every summary proceeding for the prosecution for 
 an offence or recovery of a penalty. Its scope is much more 
 limited as regards matters civil, for in civil proceedings it is 
 only in virtue of express statutes that such a mode of appeal is 
 competent. 
 
 8 Ed. VII. c. 65, s. 2.
 
 326 APPEAL. 
 
 774. The Summary Jurisdiction Act requires a stated case 
 for appeal to be asked for within five days of the date of the 
 judgment complained of, and within that time also the 
 appellant (other than a procurator-fiscal) must find caution 
 for the amount of penalty and expenses, and for the costs of 
 the appeal if such should be awarded, or in lieu of such caution 
 the Sheriff, as is the more common practice, may require the 
 appellant to consign such sum as he may fix, to meet the 
 penalty (if any) awarded and the costs of appeal. The draft 
 case is prepared by the Sheriff-clerk, and submitted to the 
 parties or their agents within ton days, and. if not agreed upon 
 by the parties, its terms are then settled by the Sheriff. The 
 case, when settled and signed, is delivered to the appellant, 
 with whom then rests the duty of giving notice to the 
 respondent, and transmitting the case to the Clerk of the 
 appellate Court. No written pleadings are required, beyond 
 the statement of facts and the questions of law set forth in 
 the stated case, and the judgment of the appellate Court may 
 either dispose of the cause, or answer the questions of law, 
 and remit the cause back to the Sheriff for disposal. 
 
 8 Ed. VII. c. 65, s. 60-72. 
 
 775. Under the Summary Prosecutions Appeals Act of 1875, 
 which introduced the appeal by stated case, the Sheriff might 
 refuse to state a case " should he consider such application to 
 "be frivolous,*' the most common kind of frivolity being an 
 application to state questions of law upon facts which do not 
 give rise to any question of law. An application for a case, 
 however, cannot be frivolous, in the statutory sense, if it is 
 made on behalf of the Lord Advocate, or a procurator-fiscal 
 prosecuting for the public interest, and to him a case could 
 not be refused. To any other appellant a case might be 
 refused, but the Sheriff had to giant a certificate of refusal, 
 and that grounded a note of appeal to have the Sheriff, for 
 reasons stated by the appellant in his note, ordained to state 
 a case. The peculiarity of the appeal upon a certificate of 
 refusal was that the question whether the Sheriff rightly 
 refused to state a case was not submitted to the whole Court 
 of Appeal, which would have considered a stated case, but to 
 any one of its judges; that the right of the Sheriff or the 
 respondent to be heard upon the refusal was in the discretion 
 of the single judge; and that the judgment of the single judge
 
 STATED CASE APPEAL. 327 
 
 upon the certificate of refusa] was final. Km the L875 A < ■ t has 
 been repealed by the Summary Jurisdiction Act, L908, and 
 in thai statute there is no power to refuse a stated case. The 
 Court is now bound to 3tate a case if asked; but, of course, 
 it is competent for the Sheriff to say thai no question of law 
 ;u ises. 
 
 38 & 39 Vict. c. 62, s. 4, 5. 8 Ed. VII. c. 65, s. 60. 
 
 770. The stated case has been adopted as a mode of review 
 in civil causes under various recent statutes, as, for instance, 
 under the Agricultural Eoldings Act, 1908. The statutory 
 arbitrator may state questions of law for the opinion of the 
 Sheriff, and his opinion is a judgment, against which appeal 
 may be taken to the Court of Session, within twenty days of its 
 date, by note of appeal in common form, the procedure in the 
 Court of Session being similar to that in an appeal from the 
 Sheriff Court againsl a judgmenl in an ordinary action. 
 
 8 Ed. VII. c. 64. s. 11 (3). Act of Sederunt, 11th June, 
 
 1901. 
 
 777. Another important statute in which this mode of 
 review has been adopted is the Workmen's Compensation 
 Act, 1900. A party aggrieved by the Sheriff's judgment may 
 within seven days apply to the Sheriff for a case, on a question 
 of law, for the opinion of the Court of Session. 
 
 6 Ed. VII c. 58, Sch. II., Act of Sederunt, 28th Oct.. 
 
 17 (b). 1909. 
 
 At lit Sederunt, 26th June, 
 
 1907, s. 17. 
 
 14. Advisory Appeal. 
 
 778. Recent legislation has countenanced a form of guasi- 
 appeal which is new' in the Sheriff Court, and which is rather 
 foreign to its practice. That is the stated case, not for n 
 
 by, but for advice from, the Court of Session. An instance of 
 this is found in the Town Planning Act of L909. The difficul- 
 ties which it creates arise from the unfortunate practice in 
 Parliament of having bills framed in English phraseology, 
 and with reference to English practice, and then by a general 
 clause making the Act applicable also to Scotland, without 
 paying due regard to the material differences in the practice in 
 the two countries. 
 
 9 Ed. VII. c. 44.
 
 328 APPEAL. 
 
 779. In Scotland, an application made under this statute 
 is a summary application in the Sheriff Courts, being an appeal 
 to the Sheriff against an order of a local authority. The 
 direction of the Sheriff Courts Act, 1907, as regards a summary 
 application is that the Sheriff " shall summarily dispose of the 
 " matter and give his judgment in writing." This direction is 
 in accordance with the practice in Scotland, that an appellate 
 Court does not consider the judgment of a Court below until 
 that Court has independently disposed of the application. 
 
 Appendix, s. 3 (/>), 50. Act of Sederunt, 4th November, 
 
 7 Ed. VII. c. 51, s. 3 {p), 50. 1910. 
 
 780. But the Town Planning Act seems to sanction an 
 expression of opinion being asked from the Court of Session 
 before the Sheriff has disposed of the matter, as he is required 
 to do by section 50 of the Sheriff Courts Act, 1907. This 
 may be appropriate in England, where it is the Local Govern- 
 ment Board which reviews an order made by a local authority. 
 It may be quite appropriate for such an administrative body 
 to seek the guidance of the Court upon questions of law arising 
 in the course of the proceedings. But in Scotland the expres- 
 sion Local Government Board means the Sheriff. Accordingly, 
 the duty of reviewing an order made by a local authority has 
 in Scotland been committed to a judge, not to an administra- 
 tive body; and it has never been the practice in Scotland for 
 a judge, in the course of disposing of a cause, to seek his law 
 outside of his own Court. Nevertheless, the situation created 
 by this statute appears to be (a) that, after the Sheriff has 
 pronounced final judgment, there is no appeal; (b) but that, 
 before he has pronounced judgment (or even indicated any 
 view either upon law or fact), it is competent for a party to 
 require the Sheriff to state a case for the opinion of the Court 
 of Session upon questions of law. In statutory applications, 
 accordingly, it will always be wise to examine the statute 
 itself for possible peculiarities of procedure, of which the Town 
 Planning Act affords an illustration. 
 
 9 Ed. VII. c. 44. Johnston's Trustees v. Glasgow 
 
 Kirkpatrick v. Maxwelltown Corporation (1911), 1912, S.C. 
 
 Local Authority (1911), 1912, 300. 
 
 S.C. 288.
 
 CHAPTER XIV. 
 
 EXPENSES. 
 
 1. General. 
 
 781. The costs of the successful party in a contested 
 
 litigation were originally regarded as damages due by the 
 
 unsuccessful party, in reparation of the loss incurred by the 
 
 successful party, in consequence of his opponent's bad faith 
 
 in litigating. But the success, or otherwise, of a litigation has 
 
 long ceased to be regarded as an evidence either of good or bad 
 
 faith, and a litigant who contests a cause, even if not personally 
 
 interested, as, for instance, a bankruptcy trustee, and however 
 
 much in good faith he acts, may be held liable in expenses if 
 
 he is unsuccessful. In an uncontested cause, expenses are 
 
 awarded to the pursuer, if expenses have been craved for ; the 
 
 defender, in respect of his non-appearance, being held as 
 
 confessed. 
 
 1471 c 49. Torbet v. Borthwick, 1849, 11 
 
 1540 c! 110. D. 694. 
 
 1587 c 43 Alston & Orr v. Allan s 
 
 1592 c. 114. Trustees, 1910, S.C. 304. 
 
 782. Where expenses have been reserved, in a judgment 
 dealing with preliminary pleas, and afterwards decree is given 
 for expenses in general terms, that decree carries the reserved 
 expenses. 
 
 783. It frequently happens that much expense is incurred 
 in the discussion of a claim before it reaches the Court, but 
 costs incurred prior to the service of a writ are not judicial 
 costs. A defender is in time to avoid liability for expenses, if 
 he satisfy the claim or demand before the initial writ has been 
 taken out. A creditor, therefore, is not entitled to refuse to 
 accept payment of a claim unless the expense lie has incurred 
 in taking' legal advice is also paid. If he insist upon this 
 condition, and insist on serving his action, proof that payment
 
 330 EXPENSES. 
 
 of the full sum claimed was tendered, before the issue of a 
 writ , will preclude the creditor getting expenses, but a partial 
 tender may not have this effect. It follows that a defender 
 must be afforded the opportunity of meeting- the pursuer's 
 claim or demand, before he can be held liable in any expenses. 
 If no previous demand has been made, and a defender pays 
 immediately after service, Mie pursuer will not in general be 
 allowed expens 
 
 Ad of Sederunt, 10th April, Mintons v. Hawley & Co., 1882, 
 
 1908, Gen. Reg. 9. 20 S.L.R, 126. 
 
 Leith Magistrates v. Lennon, 
 1881, 18 S.L.R. 313. 
 
 784. It is not competent to consign in the hands of the 
 
 Sheriff-clerk a sum to represent the expenses of a threatened 
 
 action, not yet raised. At till events, such consignation does 
 
 not defeat the claim of a successful pursuer to expenses when 
 
 the action is raised. 
 
 Alexander v. Campbell's Trus- A R v. C D, 1909, 25 S.C.R. 
 
 es, 1903, 5 F. 634. 106. 
 
 2. Crave von Expenses. 
 
 785. Expenses should be craved in the initial writ. The 
 Sheriff Courts Acts, 1907-1913, do not expressly direct that 
 expenses must be craved, as the 1876 Act did, and, even when 
 expenses are not craved, it is probably within the discretion 
 of the Court, unless debarred by statute applicable to the case, 
 to award or refuse expenses in a contested cause. But expenses 
 cannot be awarded in an undefended cause unless craved. At 
 the time the writ is served, the pursuer does not know whether 
 the action will be defended. If lie omit a crave for expenses, 
 therefore, he takes the risk of no appearance being made, in 
 which event he cannot obtain a decree for expenses, unless 
 he is allowed to avail himself of the amendment powers of 
 the Act of 1 ( J07, to add a craving for expenses before moving 
 for decree. If such an amendment is allowed, the Court 
 will probably order re-service before allowing the amendment 
 to be made, for a defender might be willing to let decree 
 go against him for the principal claim or demand, and yet 
 have a good answer to a claim for expenses, as for instance, 
 that payment had never been asked of him before the service 
 of the writ . 
 
 Appendix, Form A. 39 & 40 Vict, c. 70, Sch. A.
 
 INTERIM EXPENSES. 331 
 
 3. Interim Expenses. 
 
 786. In general, the matter of expenses is deall with only 
 when final judgment is pronounced, bul in certaii] circum- 
 stances, under the Sheriff Courts Act, 1907, an award of 
 expenses may be made during the course of a process, as, tor 
 instance, where amendment is allowed. Interim decree may be 
 granted for such expenses, and such ■ may be 
 extracted, and enforced, without waiting for the conclusion of 
 the process. So also, in a separation and aliment case, an 
 interim award of expenses may be made. In an act inn 
 of inultiplepoinding, a decree for expenses in favour of He- 
 nominal raiser, and possibly the real raiser, is generally granted 
 during the progress of the process. 
 
 Appendix, Rules 26, 35, 79, 129. 7 Erl. VII. c. 51, Sch. I., Rules 
 
 26, 35, 79, 129. 
 
 787. Even apart from statutory enactment, the wide 
 discretion of the Court in regard to the matter of expenses 
 may warrant the Sheriff granting a decree for expenses before 
 the close of a litigation — as, for instance, when a special point 
 has been raised, which is distinct from the merits of the cause, 
 and which the ultimate decision will not affect, the exp. 
 
 of proof or discussion requisite to settle that point may he 
 dealt with when the point has been settled, although the main 
 litigation is "till pending. 
 
 Waddel v. Hope, 1843, 6 D. 160. 
 
 4. Caution for Expenses. 
 
 788. As already referred to, the Sheriff has a discretion to 
 make the finding of caution for expenses a condition of permit- 
 ting a party to litigate, as. for instance, a pursuer who is an 
 undischarged bankrupt, or a limited company in liquidation, 
 when the Court is reasonably satisfied that there is doubt of the 
 realisable assets of the company being sufficient to 
 expenses. A defender will be required to find caution only in 
 very exceptional circumstances, as, tor instance, voluntarily 
 divesting himself of his whole estate, or leaving- Scotland per- 
 manent l\- pendente lite. 
 
 8 Ed. VII. c. 90, s. 278. New Mining Exploration Sj 
 
 Drew v. Robertson, "1903, cate v. Chalmers, fee., 1909, 
 
 11 S.L.T. 31. S.C. 1390. 
 
 Macnaghtan v. Thomson, 1907, Robertson v. M'Caw, 1911, 
 
 24 S.C.R, 80. s.c. 650.
 
 332 EXPENSES. 
 
 5. Joint Litigants. 
 
 789. Joint litigants, who maintain the same pleas, are in 
 
 general allowed only one set of expenses; but joint defenders 
 
 who have conflicting interests may state separate defences. 
 
 They may also be held liable to each other in expenses. A 
 
 decree for expenses jointly and severally against joint litigants 
 
 may be enforced against any one, like any other joint and 
 
 several decree, but the party operated against has relief against 
 
 the others, each for his proportion. 
 
 Bell v. Goodall, 1883, 10 R. 905. Welsh v. Eastern Cemetery 
 
 Company, 1894, 21 R. 769. 
 
 6. Agent and Client Expenses. 
 
 790. A decree for expenses expressed in general terms 
 ordinarily means expenses as between party and party. The 
 Court has no express authority to award expenses as between 
 agent and client, unless in an action in which such an award 
 of expenses is competent under a statute, as, for instance, 
 under the Public Authorities Protection Act of 1893, which 
 entitles the defender, if successful, to expenses as between 
 agent and client, if the action has been directed against him in 
 respect of " any act done in pursuance or execution or intended 
 " execution of any Act of Parliament, or of any public duty 
 " or authority, or in respect of any alleged neglect or 
 " default in the execution of any such Act, duty, or 
 " authority.'' The judgment awarding expenses in such a case 
 must bear that expenses are allowed as between agent and 
 client. 
 
 56 & 57 Vict. c. 61, s. 1. Montgomerie v. Haddington 
 
 Fletcher's Trustees v. Fletcher, Magistrates, 1906, 14 S.L.T. 
 
 1888, 15 R. 862. 183. 
 
 Aberchirder Magistrates v. Banff Aird v. Tarbert School Board, 
 
 District Committee, 1906, 8 F. 1907, S.C. 22, 305. 
 
 571. 
 
 791. Without express statutory authority, the Sheriff has 
 power to award expenses as between agent and client expenses 
 in an action of separation or adherence and aliment. Such 
 expenses are allowed in the Court of Session, and, as the Sheriff 
 Courts Acts, 1907-1913, extend the jurisdiction of the Sheriff 
 Court to cover such consistorial actions, and give no special 
 direction as to expenses, such actions fall under the ordinary
 
 AGENT AND CLIENT EXPENSES. 333 
 
 rules as to expenses as recognised in a Courl <>i Session process. 
 The Act of Sederunt regulating the fees of agents practising 
 in the Sheriff Court, subject to these qualifications, only recog- 
 nises expenses as between party and party, and uhilsl "in all 
 " cases the Sheriff may appoint that expenses shall be subject bo 
 "modification," he is not invested with any discretion to 
 augment them, or to direct expenses to be taxed upon any o1 her 
 basis than that of party and party. 
 
 Act of Sederunt, 10th April, Grant v. Grant, 1905, 43 S.L.R. 
 
 1908, Gen. Reg. 1, 8. 109. 
 
 Mackellar v. Mackellar, 1898, A B v. C D, 1906, 8 P. 973. 
 
 25 R. 883. 
 
 7. Taxation. 
 
 792. Expenses may be taxed upon either of two scales, 
 according as the value of the cause is under, or over, £50, 
 and " where the pecuniary amount or value of the question in 
 " dispute cannot be ascertained from the process," the Sheriff, 
 not the auditor, determines according to which scale the 
 account shall be taxed. In actions of damages the scale of 
 taxation is regulated, not by the sum concluded for, but by 
 the sum decerned for; in any action, if the principal sum 
 decerned for does not exceed £20, and the action is of the 
 nature competent in the Small Debt Court, the expenses may 
 be restricted to what would have been allowed if the action 
 had been raised in the Small Debt Court; and in all cases the 
 Sheriff has a discretion to modify expenses, either by directing 
 an account ostensibly falling under the second scale to be 
 taxed according to the first, or by allowing only a proportion 
 of the expenses ordinarily exigible; but he has not power to 
 give an instalment decree for expenses. If expenses are to 
 be exceptionally treated in any way, a motion to that effect 
 must be timeously made. The Court will not interfere, for 
 instance, after expenses have been taxed, to determine upon 
 which scale expenses should be taxed. 
 
 Act of Sederunt, 10th April, Abrahams, Limited, v. Camp- 
 
 1908, Gen. Reg. 1, 5 (2), 2 bell (1910). 1911, S.C. 353. 
 
 (3), 5. Archer's Trustees v. Alexander, 
 
 M'Grorty v. Shotts Iron Com- 1911, 27 S.C.R. 11. 
 pany, 1910, 26 S.C.R. 157. 
 
 793. In bankruptcy and executry business expenses are 
 allowed, partly under special heads, and partly under the 
 general regulations applicable to all actions. 
 
 Act of Sederunt, 10th April, 1908, Gen. Reg. 3, c. 3, 4, 5
 
 :;:;i EXPENSES. 
 
 794. In a summary cause, expenses are. as a rule, taxed 
 
 upon the first scale, but if the sum decerned for does not exceed 
 
 £20, the Sheriff may allow Small Debt expenses only. When 
 
 a Small Debt action lias been remitted to the ordinary roll, 
 
 "the cause shall proceed in all respects, including appeal, as 
 
 "if it had been originally raised in the Ordinary Court." The 
 
 matter of expenses therefore appears to be in the Sheriff's 
 
 discretion, and, failing special direction, the ordinary lees will 
 
 apply from the time the case appears on the Ordinary Court 
 
 roll. 
 
 Appendix s 48. A.d of Sederunt, 10th April, 
 
 7 Ed. VII. c. 51, s. 48. 1908, Gen. Reg. 2 (5), 3, 7. 
 
 795. Besides his general discretion to award expenses 
 subject to modification, the Sheriff has power also to disallow 
 particular charges relative to procedure which he regards as 
 unnecessary, or irregular, the general discretion being that in 
 any litigation "only such expenses shall be allowed in taxing 
 "accounts between party and party as are necessary for con- 
 " ducting- it in a proper manner, with due regard to economy." 
 
 Act of Sederunt, 10th April, 1908, Gen. Reg. 10. 
 
 7 90. Liability for expenses, limitation thereof, taxation of 
 expenses upon a scale other than that ostensibly appropriate 
 to the action, modification of expenses, and the like, are 
 matters which should be dealt with in the interlocutor finding 
 expenses due. Such matters are part of the merits of the 
 cause, and are subject to review, if appeal on the merits is com- 
 petent, or leave is granted. 
 
 Act of Sederunt, 10th April, Warrand v. Watson, 1907, S.C. 
 
 1908, den. Reg. 2 (2), 5. 432. 
 
 Murray v. Rennie, 1897, 24 R. Fulwood v. Dumfries Harbour 
 
 1026. Commissioners, 1907, S.C. 
 
 Aberchirder Magistrates v. 735. 
 
 Banff District Committee, 
 
 1906, 8 F. 571. 
 
 797. A decree for expenses cannot be issued till the account 
 of expenses has been taxed, unless the expenses have been 
 modified at a fixed sum, and so taxation is not necessary. A 
 note of objections to the Auditor's report must be lodged 
 within two days of the lodging in process of the Auditor's 
 report, and the objections are disposed of " in a summary 
 " manner, with or without answers." But, beyond this general
 
 TAXATION. 
 
 direction, there is no statutory procedure. It is contem- 
 plated, however, thai there may be formal an Ten to the 
 objections, and, where the objections i1 may 
 
 sometimes be convenient that answers be ordered. In the 
 ordinary case, however, there is no! likely to be any advantage 
 in this, and in practice answers are seldom pul in. Objections 
 may, of course, be stated for both parties. 
 
 Crossan v. Caledonian Railway Company, 1902, 5 F. 187. 
 
 798. The note of objection should be specific, and should 
 deal with each item separately, setting forth the complaint as 
 to the Auditor's method of dealing with that item, and, if 
 necessary, what the objector propose- should he substituted 
 for the Auditor's finding; but when the ohjection is general 
 it may be stated in general terms, as. for instance, that the 
 fees which the Auditor has allowed to witnesses are not ade- 
 quate in the circumstances. There is no rule expressly requir- 
 ing an objector to notify the other party that he is lodging a 
 note of objections to the Auditor's report, or to intimate the 
 diet fixed for disposing of the objections. It will be prudent, 
 therefore, for the ag-ent of each party to inquire, after the lapse 
 of two days from the lodging- of the Auditor's report, whether 
 objections have been lodged. 
 
 Appendix, Rule 100. 7 Ed. VII. c. 51. Sch. I.. Rule 
 
 100. 
 
 7!t0. If there are no objections lodged, or after they have 
 
 been disposed of, the Sheriff, by interlocutor, approves of the 
 
 Auditor's report and decerns for the taxed expenses. Such 
 
 decree may be extracted " after the lapse of seven days, unless 
 
 "otherwise directed by the Sheriff." In the general rule, 
 
 which gives the Sheriff a discretion to shorten the extract 
 
 period, a decree for expenses is excepted, which would appear 
 
 to suggest that no extract for expenses can be issued earlier 
 
 than after seven days; but the rule relating to expenses itself 
 
 appears to give the Sheriff a discretion even wider than that 
 
 of the general extract rule, and to make it competent to shorten 
 
 the extract period of a decree for expenses. 
 
 Appendix, Rules 85, 98. 100. 7 Ed. VII. c. 51. Sch. I., Rules 
 
 85, 98. 100. 
 
 800. When a nun it has been made to the Auditor to tax 
 expenses, and be has made a report which has not been objected
 
 336 EXPENSES. 
 
 to, an interlocutor merely approving of the Auditor's report and 
 granting decree for the taxed amount of the expenses is not 
 an appealable judgment, but is a supplementary executorial 
 judgment, merely making operative the finding of liability for 
 expenses already pronounced in the principal judgment. 
 When objections have been stated to the Auditor's report, it 
 is doubtful whether the judgment disposing of these objections 
 is appealable, but where a question of importance is involved, 
 an appeal by leave would probably be entertained. 
 
 Maxwell Trustees v. Kirkintil- Craig v. Craig, 1906, 44 S.L.R. 
 
 loch Parish Council, 1883, 11 100. 
 
 R. 1. Caldwell v. Dykes, 1906, 8 F. 
 
 Innes v. Macdonald, 1899. 1 F. 839. 
 
 380. 
 
 801. Every decree for expenses includes decree for the 
 
 expense of extract. The account of expenses is taxed upon 
 
 the footing that the decree will be extracted, and it includes 
 
 that expense. If, as a matter of fact, the decree is not 
 
 extracted, a party who pays immediately upon taxation, and 
 
 so renders extract unnecessary, may be entitled to deduction 
 
 of the items included in the taxed account, but not actually 
 
 incurred; but when a decree has been granted, the holder of 
 
 it is, as a general rule, entitled to extract it, at the expense of 
 
 the party found liable, if the obtaining an extract is reasonably 
 
 necessary, as, for instance, where the decree is not merely for 
 
 payment of money, but is a mixed decree or a declarator decree. 
 
 Interest runs on a decree for expenses from its date, that is, 
 
 from the date of its entry in the Court books. 
 
 Appendix, Rule 98. Bannatyne v. M'Lean, 1884, 11 
 
 7 Ed. VII. c. 51, Sch. I., Rule R. 681 
 
 98. Rutherglen Parish Council v. 
 
 Wallace v. Henderson, 1876, 4 Glenbuckett Parish Council, 
 
 R. 264. 1896, 33 S.L.R. 368. 
 
 Leith Magistrates v. Gibb, 1882, Orr v. Smith, 1891, 28 S.L.R. 
 
 19 S.L.R. 399. 539. 
 
 8. Decree in Agent's Name. 
 
 802. Expenses found due to the successful party in a 
 litigation are not necessarily decerned for in favour of that 
 party, for his law agent may interpose to obtain the decree for 
 expenses in his name, the Sheriff being empowered to " allow 
 " a decree for expenses to go out and be extracted in name of 
 " the agent who conducted the cause," but this is a matter for 
 the discretion of the Court, and it does not follow that, because
 
 DECREE IN AGENT'S NAME. 337 
 
 it is competent to allow extrad in the agent's name, that will 
 always be done. The proper time Eor exercising this dis- 
 cretion, when the expenses are modified al a fixed sum, is 
 w li.-n thai sum is fixed and decerned for. When a remil has 
 been made Eor taxation, the time to move for decree in the 
 agent's aame is when an interlocutor is asked for approving 
 of ilic Auditor's report, and decerning for the taxed expenses. 
 The agent who is entitled to decree in his name is the Sheriff 
 Com I agent, even when the case has been appealed to the 
 Court of Session. Strictly speaking, probably, when the 
 appellate Court decerns Eor expenses in favour of an agent, the 
 exact decerniture might be in favour of the Sheriff Court agenl 
 for the proportion of taxed expenses up to the date of noting 
 appeal, and in favour of the Edinburgh agent for the expenses 
 beyond that date; but where, in a case appealed from the 
 Sheriff Court, the appellant has been successful, and has been 
 found entitled to expenses in both Courts, it is competent, and 
 it is the common practice, to allow decree for the wdiole expenses 
 to go out in name of the Sheriff Court agent. 
 
 Appendix, Rule 99. Masco Cabinet and Bedding 
 
 7 Ed. VII. c. 51, Sch. I., Rule Company, Limited v. Martin. 
 
 99. 1912, S.C. 896. 
 
 Smith v. Gordon, 1908, 45 
 
 S.L.R. 513. 
 
 SO'-]. The statutory right of an agent, to obtain decree in 
 
 his own name for expenses to which his client has been found 
 entitled, does not emerge till expenses have been found due. 
 The privilege does not go so far as to entitle an agent to' 
 cany on a process on his own account, in order to secure a 
 decree in his own name for expenses. On the other hand, 
 the Court will not permit the agent's interest to be defeated 
 by collusive arrangements to which his client may lend 
 himself, and a law agent may be sisted as a party where the 
 case has reached a stage at which a finding for expenses will 
 naturally follow, although, as yet, no formal interlocutor 
 dealing with expenses has been pronounced, or where the 
 parties to a cause have collusively come to an agreement not 
 to prosecute the litigation, obviously with the view of defeating 
 recovery of expenses by a party's agent. 
 
 Clark v. Henderson, 1875, 2 R. Crawford v. Smith, 1900, 8 
 
 428. S.L.T. 249. 
 
 Elliot v. Elliot, 1893, 1 S.L.T. Riddle v. Riddle. 1904, 12 SI. T 
 
 261. 361. 
 
 Welsh v. Cousins, 1898, 35 Amnion v. Tod, 1912. S.C. 306. 
 
 S.L.R. 656. 
 
 oo
 
 338 EXPENSES. 
 
 804. A law agent may bo found personally liable in 
 
 expenses in the exceptional case of bis conducting a litigation 
 
 without bis client's authority. In that event, decree may be 
 
 granted against the agenl personally for the expenses in which 
 
 bis client has been found liable. 
 
 Cowan v. Parnie, 1836, 14 S. M'Call v. Sharp, 1862, 24 P. 
 
 634. 393. 
 
 805. When the law agent of a successful party has obtained 
 decree in his own name against the unsuccessful party, that 
 precludes the latter setting off against the decree for expenses 
 any other claim lie may have against the agent's client, unless 
 that claim is also for expenses, and arises out of the same 
 matter. Thus, in an action for debt, the party found liable 
 in expenses cannot set off, against his opponent's agent's 
 decree for expenses, some other debt which he might plead 
 against the client himself. But where a party has been sued. 
 and in that action been found liable in expenses, but has been 
 successful and found entitled to expenses in a concurrent 
 action, his right to set off the one expenses liability against the 
 other cannot be defeated by his opponent's agent taking decree 
 for expenses in his own name. So, also, where there has been 
 divided success in the same process, pursuer having been 
 found entitled to expenses up to a specified date, and defender 
 entitled to expenses after that date, neither party can defeat 
 the set off right of the other, by putting forward his agent to 
 ask decree in his own name for expenses. The granting of 
 expenses in an agent's name is intended as a privilege for the 
 protection of the agent, not as a means of enabling his client 
 to avoid a just debt. The privilege, therefore, does not have 
 the effect of avoiding compensation as between decrees for 
 expenses arising out of the same matter, even if granted in 
 ostensibly separate processes. 
 
 Portobello Pier Company v. Oliver v. Wilkie, 1901, 4 F. 
 
 Clift, 1877, 4 R. 685. 362. 
 
 M'Gillivray v. Mackintosh, 1891, Lochgelly Iron Company v. 
 
 19 R. 103. Sinclair, 1907, S.C. 442. 
 
 Dixon v. .Murray, 1894, 1 S.L.T. Crieve's Trustees v. Grieye, 
 
 600. 1907, S.C. 963. 
 
 9. Partial Expenses. 
 
 80G. A successful party who is found entitled to expenses 
 in general terms may nevertheless not have entirely succeeded
 
 PARTIAL EXPENSES. 
 
 upon every brand of his case. If the portion in regard to 
 
 which he has been unsuccessful has occasioned materia] expense 
 to the opposing party, the otherwise successful party may 
 be found liable to his opponenl in the expenses relative to that 
 particular phase of the case, even if the non-success of thai 
 phase had no effect upon the ultimate decerniture. In any 
 event, the successful party is not entitled to the expi 
 relative to that phase of the case, nor will he lie allowed expel 31 
 unnecessarily incurred through his or hi* agent's fault. 
 
 Ralston v. Caledonian Railway Craig v. Craig, 1906.. 44 S.I. P.. 
 
 Company, 1878, 5 R. 671. ' 100. 
 
 Dick & Stevenson v. Mackay, 
 
 1880, 7 R. 778. 
 
 807. This restriction, however, does aol apply to the mere 
 stating of pleas, Buch as competency or jurisdiction. Although 
 such pleas may he repelled, if the defender ultimately succeeds 
 on the merits, and gets an award of expenses in general terms, 
 he is entitled to his whole expenses in fighting the case, even 
 although, in the course of the litigation, he may have unsuc- 
 cessfully stated certain pleas. An agent therefore should 
 raise the question of expenses upon the preliminary pleas, at 
 the time these pleas are disposed of, or at least at the clos 
 the case, so that the Court may, if the circumstances warrant 
 any modification, give directions to the auditor accordingly. 
 
 Act of Sederunt. 10th April, Wedderburn Petr. (1910). 1911, 
 
 1908, Gen. Reg. 11. S.C. 4. 
 
 808. Although a parly has been successful in a litigation, 
 to the effect of having his opponent's pleas repelled, he does 
 not necessarily get decree for expenses. A defender may get 
 ■decree of absolvitor, because the pursuer has technically failed 
 to prove his averments; but the circumstances may warranl 
 his being refused expenses, or even found liable in expenses. 
 
 Wnrdl.uv v. Drysdale, 1898, 25 Wilson v. Kernachan, 1 
 
 R. 879. 28 S.C.R. 313. 
 
 809. Certain charges must be disallowed by the Auditor, 
 unless the conditions upon which alone such charges are 
 competent have been duly complied with. Thus, in general, 
 witness fees are allowed only lor witnesses who are actually 
 examined, or are held as concurring with a witness who has 
 been examined. But it not infrequently happens that a party
 
 340 EXPENSES. 
 
 who has brought necessary witnesses does not require to 
 examine them, because of some change of circumstances at the 
 proof, as, for instance, his opponents not insisting in the 
 particular matter to which these witnesses were intended to 
 speak. Under the Sheriff Court Table of Fees, remuneration to 
 witnesses whose names are noted as being present at the trial, 
 although they are not examined, may be included by leave 
 of the Court, provided a motion is made to that effect, immedi- 
 ately upon the close of the proof. The Sheriff need not neces- 
 sarily then dispose of the motion, but it must be made at the 
 trial diet, for, if this is not done, the direction to the Auditor 
 is peremptory to disallow any charges for such witnesses. 
 A.t of Sederunt, 10th April, 1908, chap. x. (d). 
 
 10. Skilled Witnesses. 
 
 810. Skilled witnesses are entitled to a fee for making 
 investigations, to qualify them for giving evidence. The judge 
 presiding at the trial (not any other) must certify them as 
 skilled persons, and a motion for such a certificate must be 
 made at the trial, or when leave to abandon is asked for, or 
 v. I thin eight days after the date of " any interlocutor disposing 
 " of the case," otherwise the Auditor cannot allow them fees 
 as skilled witnesses. The former Table of Fees, which the 
 recent Act of Sederunt has superseded, required the motion to 
 certify skilled witnesses to be made within eight days of the 
 trial, which, strictly speaking, meant before the action had 
 been decided, but which was generally interpreted as meaning 
 within eight days of judgment. The new regulation 
 enables a party first to see the decision, before elect- 
 ing to claim an allowance for skilled witnesses. The 
 previous Act of Sederunt also defined a skilled witness, but 
 the present one does not. It provides that the investigation 
 allowance be given to witnesses who are generally referred 
 to as " skilled persons,'" which will, in practice, probably be 
 read as including what the old Act called " professional or 
 " scientific persons, such as physicians, surgeons, chemists, 
 " engineers, land surveyors, or accountants," but not excluding 
 any other skilled person who, in the Sheriff's opinion, was 
 reasonably entitled to visit a locus, or examine work, or make 
 calculations, or otherwise occupy time before the date of
 
 SKILLED WITNESSES. 341 
 
 trial, in order to qualify himself for giving evidence a1 
 trial. 
 
 Act of Sederunt, 4th Dec, Gibson '■. West Lothian Oil 
 
 1878, Fee Table 11 (2). Company, 1887, 14 R. 578. 
 
 A. t of Sederunt, 10th April, Reid v. North 1-1 
 
 1908, chap. x. (6). Orkney C. C, 1912, 
 
 627. 
 
 811. What the Court is required to certify is thai the skilled 
 witness is entitled to a fee for making investigation 
 addition to, not in substitution for, his fee for attendance as 
 
 a witness. Extra expense incurred precognosing witnesses at 
 a distance may be allowed, but the circumstances must be 
 special. Strictly speaking-, the witness fee allowed to such 
 a witness should be divided into two parts, one for qualifying 
 himself to depone, and the other for attending- to depone; 
 but the one duty very often runs into the other, and in practice 
 oue augmented fee is allowed. If the statutory certificate is 
 not timeously obtained, the right to obtain it is altogether lost. 
 It is not competent for the Appeal Court to supply the omission 
 to obtain a certificate in the Court below. 
 
 Ferguson v. Johnstone, 1886, 13 Ebbw Vale Company v. Murray, 
 
 R. 635. 1898, 25 R. 925. 
 
 11. Counsel's Fees. 
 
 812. The Auditor can allow counsel's fees only " where the 
 " employment of counsel is sanctioned." This expression in 
 the Act of Sederunt of 10th April, 1908, refers only to counsel's 
 fees. It does not inter that the Court's sanction is required for 
 the appearing of a party by counsel, for that does not require 
 any sanction of the Court, it being the right of any litigant in 
 the Sheriff Court to appear personally, or by counsel, or by an 
 enrolled law agent. 
 
 Act of Sederunt, 4th Dec, 1874, Act of Sederunt, 10th April, 
 
 s. 4. 1908, chap. 1, s. 16. 
 
 813. Counsel's fees as party and party expenses musi 
 disallowed by the Auditor unless they have been timeously 
 sanctioned by the Court as proper party and party expenses. 
 "Whether such fees should be so sanctioned is a matter entirely 
 in the discretion of the Sheriff in each particular case. Bis 
 sanction mav be given at any time before the taxation of the
 
 342 EXPENSES. 
 
 expenses. An appellate Court will not, in general, interfere- 
 with the discretion of the judge of first instance in this matter. 
 
 7 Ed. VII. c. 51, Seh. I., Rule Mackenzie v. Blakeley, 1879, 7 
 
 140. R. 51. 
 
 Act of Sederunt, 4th Dec., 1874, M'Kerchar r. M'Quarrie, 1887, 
 
 s. 4. 14 R. 1038. 
 
 Act of Sederunt, 10th April, Wood's Trustees v. Wood, 1900, 
 
 1908, chap. 1, s. 16 (a). 2 F. 870. 
 
 12. Effect of Tender. 
 
 814. The general rule that s\iccess infers right to expenses, 
 and non-success infers liability for expenses, may be very 
 materially qualified by the making of a tender, either prior 
 to, or during the progress of, a litigation. No tender affects 
 the question of expenses, if the pursuer has obtained decree 
 for a sum greater than the tender. But if he has obtained 
 decree for less than has been offered him, not only may he 
 not be entitled to expenses, but he may be liable in expenses 
 to the defender. Offers merely made in correspondence, for 
 the avoidance of litigation, whether made before or after the 
 action has been raised, are extrajudicial, and without pre- 
 judice, unless where proposals made in correspondence are 
 made judicial by being founded on in the pleadings, as they 
 frequentfy are. Extrajudicial proposals do not affect the 
 question of expenses in a litigation at all. To have any effect 
 upon expenses, the tender must be judicial. It may be 
 embodied in the defences, or it may be contained in a separate 
 minute, but it must be unconditional and specific, and, if made 
 after the action has commenced, even if it be no more than 
 served, it must include an offer of expenses up to date of 
 tender. 
 
 Aitchison v. Steven, 1864, 3 M. Thomson r. Dailly, 1896, 24 R. 
 
 81. 1173. 
 
 Gunn, &c, v. Hunter, &c, 1886, Wick v. Wick, 1898, 1 F. 199. 
 
 13 R. 573. Riddell v. Lanarkshire Railway 
 
 Tobiasen v. Isle of Man Steam Company, 1904, 6 F. 432. 
 
 Packet Company, 1893, 1 
 
 S.L.T. 272. 
 
 815. In an action, the object of which, or one of the objects 
 of which, is the vindication of character, the mere offer of 
 money may not be sufficient. To make it valid and effective, 
 the tender must also contain a retraction of any slander 
 complained of, and an apology for the wrong done to the
 
 EFFECT OF TENDER. 343 
 
 pursuer, or, at least, the tender must be so expressed as to 
 infer apology, and to be a clear admission by defender that be 
 was in the wrong, in regard to the saying or doing complained 
 of by the pursuer. A defender who may be willing enough 
 so to acknowledge bimself to have been in the wrong, is often 
 most unwilling to use the express word " apologise," but bis 
 tender may be sufficienl without it. In an action of damages 
 for breach of promise, for instance, although the record may 
 contain statements which, it" they stood isolated, might be 
 defamatory, every averment on record need not necessarily be 
 retracted, and a simple tender of damages may be sufficient, 
 as inferring retraction. 
 
 Mitchell v. Nicol, 1890, 17 R. Brodie v. M'Gregor, 1901, 4 F. 
 
 795. 93. 
 
 Hunter v. Russell, 1901, 3 F. 
 
 596. 
 
 816. A tender need not necessarily be accepted when it is 
 made. It may, of course, be withdrawn if not accepted, but, 
 if embodied in a pleading or in a minute lodged in process, 
 and not withdrawn, it stands during the dependence of the 
 process, and it may be accepted at any time before final judg- 
 ment is pronounced. If a tender is not accepted when made, 
 but is subsequently accepted, the pursuer will be entitled to 
 expenses only up to the date the tender was lodged, and he will 
 be liable to the defender in his expenses subsequent to that date. 
 A pursuer who accepts a tender is entitled to the cost of taking- 
 legal advice as to whether the tender should be accepted. 
 
 M'Laughlin v. Glasgow Train Irvin r. Fairfield Company, 1898. 
 
 way Company, 1897, 24 R. 992. 1 F. 595. 
 
 Jack v. Black, 1911, S.C. 691. 
 
 13. Liability for Expenses. 
 
 817. In ordinary circumstances, only a principal litigant 
 is held liable in expenses, liut every person who is, in any 
 capacity, a party in a cause, has a possible liability for 
 expenses, and a party who is nominally merely a concurrent 
 may, by his actings in regard to the litigation, subject himself 
 to personal liability for expenses, as, for instance, the husband 
 of a wife, or the lather of a minor, who takes the prominent 
 part in the conduct of a litigation nominally conducted in 
 name of his wife or child, more especially it the circumstances
 
 344 
 
 EXPENSES. 
 
 are such thai success of the wife or child would directly or 
 indirectly benefit the husband or father. It is in all cases a 
 question of circumstances, but liability for expenses will not be 
 lio-htly fastened upon one who is not a principal litigant in 
 reality. 
 
 Lindsay r. Kerr, 1891, 28 S.L.R. 
 
 267.' 
 Frazer v. Cameron, 1892, 19 R. 
 
 564. 
 White v. Steels, 1894, 21 R. 
 
 649. 
 
 M'Gowan v. Cramb, 1898, 25 R. 
 
 634. 
 Picken v. Caledonian Railway 
 
 Company, 1901, 4 F. 39. 
 Kerr r. .Malcolm, 1906, 14 
 
 S.L.T. 358. 
 
 818. In the administration of some public statutes, such as 
 the Burgh Police Acts and Public Health Acts, parties 
 aggrieved by the orders of a local authority have a right of 
 appeal to the Sheriff. In such appeals it is not the practice 
 to allow expenses, unless in exceptional circumstances. 
 
 Lornie v. Perth Highland District Committee, 1909, 25 S.C.R. 124. 
 
 819. A successful party may, in very exceptional circum- 
 stances, be found liable in expenses to the unsuccessful party, 
 as, for instance, where information was withheld which would 
 have prevented the action being brought; or where an action 
 is necessary to validate a title, the doubt of the validity of 
 which has been created by the party successful in the litiga- 
 tion; or where the terms of a publication are such as to make 
 an action for vindication unavoidable, although the action 
 itself may fail; or in a slander action, where the conduct of 
 the defender has necessitated the action; but, in the ordinary 
 , any such element is sufficiently met by the refusal of 
 •expenses to the successful party, or by modification of expenses. 
 
 Howard & Wyndham v. Rich- 
 mond's Trustees, 1890, 17 R. 
 990. 
 
 Shepherd r. Elliot, 1896, 23 R. 
 695. 
 
 Barrie v. Caledonian Railway 
 Company, 1902, 5 F. 30. 
 
 Walter's Trustee v. O'Mara, 
 
 1902, 9 S.L.T. 395. 
 Campbell v. Ritchie & Companv, 
 
 1907, S.C. 1097. 
 Wilson v. Kerrigan, 1912, 28 
 
 S.C.R. 313.
 
 CHAPTER XV. 
 
 CIVIL JURY TRIAL. 
 
 1. When Competent. 
 
 820. The Sheriff Courts Acts, 1907-101:5, have mad- it 
 •competent for either of the parties in a certain class of actions 
 In require the cause to be tried in the Sheriff Court before 
 a jury. The Court has not power ex propria motu to send 
 any Sheriff Court cause for jury trial, nor has the Sheriff 
 power to refuse a motion for jury trial. If it is moved for, 
 he must grant the motion. But the privilege is restricted to 
 actions by employees against employers (whether laid at com- 
 mon law or under the Employers' Liability Act, 1880, or, 
 alternatively, under that Act or at common law), in respect 
 of injury caused by accident arising- out of and in the course 
 of his emplo} r ment. For this purpose " employee " in the 
 Sheriff Courts Acts has the same meaning as in the "Workmen's 
 Compensation Act, 1906, and includes the representatives of 
 a deceased employee. 
 
 Appendix, s. 31. 3 (q). 2 k 3 Geo. Y. c. 28, Sch. I. 
 
 821. The statute of 1907 did not cover cases laid at common 
 law only, but these were included by the 1913 Act. The 
 Sheriff Courts Acts substitute jury trial in the Sheriff Court 
 for the jury trial in the Court of Session, which is still com- 
 petent in other actions, but which, as regards this class of 
 action, was abolished bv the Workmen's Compensation Act of 
 1906. 
 
 Appendix, s. 31, Rules 133-150. Cook r. BonnvbriclEje Silica Com- 
 
 6 Ed. VII. c. 58, s. 14. pany (1910)', 1911. S.C. 177 
 
 7 Ed. VII. c. 51, s. 31-33, Seh. 
 I., Rules 133-150. 
 
 822. The system of jury trial in the Sheriff Court does not 
 follow exactly the lines of procedure in the Court of Session. 
 It is, in effect, a proof before the Sheriff and a jury, in which 
 the jury find the facts and the judge applies the law. A
 
 346 CIVIL JURY TRIAL. 
 
 motion for trial by jury in the Sheriff Court is competent only 
 if the claim exceeds £50, and only when proof has been 
 allowed, and the motion must be made within six days of the 
 date of entry in the Court books of the interlocutor allowing 
 proof. It follows that in this class of action a diet for proof 
 must be fixed at Leasi seven days distant. The motion is 
 timeously made, if lodged within the six days, although not 
 heard. This provision emphasises the desirability in this 
 (lass of action of first disposing of preliminary pleas, as 
 directed by Rule 54, for the inconvenience is very obvious of 
 sending- to a jury a case which may turn out to have been 
 irrelevantly stated, or to have been incompetent. 
 
 Appendix, s. 31. Rules 54, 83. 2 & 3 Geo. V. c. 28. Sch. II. 
 
 7 Ed. VII. c. 51. s. 31, Sch. 
 
 I., Rules 54, 83. 
 
 823. Although a motion for jury trial cannot be made till 
 proof has been allowed, the Sheriff Court statutes do not 
 discriminate as regards the various kinds of proof; and, 
 strictly read, even an allowance of interim proof, as, for 
 instance, upon a jurisdiction plea, might warrant a motion 
 tor jury trial. The contemplation of the statutes, however, 
 appears to be that a motion for jury trial should not be enter- 
 tained unless, and until, proof upon the merits of the cause 
 has been allowed. 
 
 Appendix, s. 31. 7 Ed. VII. e. 51, s. 31. 
 
 824. An interlocutor allowing proof is an appealable judg- 
 ment; but an interlocutor appointing the case to be tried 
 by jury is not. It is accordingly desirable to keep the two 
 things quite distinct. Motions to close the record, to allow 
 |Mn,.i. and lor jury trial, are sometimes made all at the one 
 diet: hut. although this may be done, and although it is 
 competent to deal with the whole in one interlocutor, it is 
 much more convenient to allow proof by separate interlocutor. 
 A motion for jury trial does not debar appeal upon the inter- 
 locutor allowing proof. 
 
 Appendix, s. 27 (d). 
 
 2, The Juey. 
 
 825. The jury is limited in number to seven persons, of 
 whom two are special and five are common jurors, chosen from
 
 THE JURY. 347 
 
 ;i panel of five special and ten common jurors to be cited from 
 the Sheriff Court jury list "in the manner prescribed by law, 
 " or in use to be followed for the citation of jurors in Scotland." 
 The statute further provides that "all statutory or other regu- 
 lations and customs relative to the citation, non-attendance, 
 ''selection, and swearing- of jurors" shall apply, with the 
 qualification that the right of challenge which each party may 
 exercise is limited to one special and one common juror; 
 " and in this matter, where there are more pursuers or 
 "defenders than one, they shall act collectively, and not 
 " individually," the practical effects of which provisions seem 
 to be (a) that for each civil jury cause in Scotland a panel of 
 fifteen is to he ciied, from which seven are selected; (h) that 
 of these fifteen four only may be challenged, two for pursuers 
 and two for defenders; (c) that if there are joint pursuers or 
 joint defenders, they must agree upon the two jurors to be 
 challenged, otherwise the right of challenge falls. 
 
 Appendix, s. 31, 32, Rules 133- 7 Ed. VII. c. 51, s. 31, Sch. I., 
 
 135. Rules 133-135. 
 
 826. In Scotland the qualification of a common juror is the 
 ownership in his own right, or that of his wife, whether in fee 
 or in liferent, of heritable property within the sheriffdom of 
 the yearly value of £5, or the ownership of personal property 
 of the value of £200. The qualification of a special juror is 
 the payment of land tax upon £100 valued rent ; payment of 
 Crown taxes upon a house rental of £30 a year; ownership 
 of heritable property of the value of £100 a year; or possession 
 of personal property worth £1000. These antiquated qualifica- 
 tions, as applied in practice, practically include all middle 
 and upper-class householders, or business men, within the 
 sheriffdom. 
 
 55 Geo. III. c. 42. 32 & 33 Vict. c. 36. 
 
 6 Geo. IV. c. 22. 34 & 35 Vict. c. 103. 
 
 7 Geo. IV. c. 8. 
 
 827. No person is eligible as a juror till he has reached 
 the age of twenty-one, and he ceases to be eligible at the age 
 of sixty. Certain persons also are exempted in tesped of their 
 occupations, although otherwise qualified. These include 
 ('/) peers; (b) judges, including Sheriffs and magistrates oi 
 royal burghs; (c) clergymen of all religious denominations.
 
 348 CIVIL JURY TKIAL. 
 
 whether acting or retired; (d) the clerks and officials of all 
 law Courts, all officers of the law, and all lawyers qualified 
 to practise, whether in actual practice or not; (e) professors in 
 universities; (/) physicians, surgeons, and registered dentists: 
 (g) Customs, Excise, and Inland Revenue officials ; (h) Army 
 and Navy officers; (i) officers and men of the Territorial 
 Army ; (j) lighthouse-keepers and their assistants. 
 
 6 Geo; IV. c. 22, s. 1. 32 & 33 Vict. c. 36. 
 
 1 & 2 Vict. c. 119, s. 27. 34 & 35 Vict. c. 103. 
 
 828. Jurors may also be exempted on the ground of their 
 residence at an inconvenient distance from the seat of the 
 Court. The Sheriff, with the approval of the Secretary for 
 Scotland, may fix a distance limit for each district Court, 
 residence beyond which limit exempts an otherwise qualified 
 person from being called to serve as a juror. This applies only 
 to the Sheriff Court, and does not affect the liability of such 
 persons to be called to serve as jurors at the Circuit Justiciary 
 Courts. In making up the jury list for the Sheriff Court, 
 however, the Sheriff-clerk is entitled to omit the names of 
 persons resident beyond the prescribed limit. 
 
 1 & 2 Vict. c. 119, s. 27. 
 
 3. Procedure. 
 
 829. The distinguishing feature of the system of jury trial 
 created by the Sheriff Courts Act, 1907, as contrasted with 
 jury trial in the Court of Session is (a) that no issue is proponed 
 to the jury, and that the form of verdict in all Sheriff Court 
 cases is that which in the Court of Session is returned only in 
 exceptional cases, and is commonly known as a special verdict ; 
 (b) that there is no appeal upon a bill of exceptions, and no 
 intermediate appeal at all, in the course of a Sheriff Court 
 jury trial, but one appeal only to the Court of Session upon 
 the final interlocutor applying to the verdict; (c) that the 
 number of the jurors is seven, instead of twelve, as in the 
 Court of Session; (77) that a Sheriff Court jury may return a 
 verdict by a majority after the lapse of one hour, instead of 
 three, as in the Court of Session; (e) that the Sheriff Court 
 system does not contemplate, and does not provide for, the 
 discharge of the jury without a verdict, as in the Court of
 
 PROCEDURE. 349 
 
 Session may occur after six hours. In other respects the 
 procedure is, in the main, similar. 
 
 Appendix, s. 31-33, Rules 133- 7 Ed. VII. c. 51, s. 31-33, 
 
 150. I., Rules 133-150. 
 
 20 & 21 Vict. c. 56, s. 34-50. Act of Sederunt, 16th Feb., 
 
 1841. 
 
 8-30. The issue, which has been perpetuated in Court of 
 Session practice, originated under the Jury Trials (Scotland) 
 Act of 1815, and there was a reason for it during the first 
 fifteen years of the operation of that statute, for a jury trial 
 was not at the first conducted by a judge of the Court of Session 
 itself, but by Commissioners , to whom the Court remitted for 
 trial the issue which the Court had prepared, and upon which 
 the Commissioners returned a verdict to be applied by the 
 Court. Although, in 1830, the duties of the Jury Trial Com- 
 missioners became merged in those of the Court of Session 
 judges, and so the purpose of the issue had ceased to exist, the 
 form of proponing an issue was continued. It is unnecessary 
 in the Sheriff Court system, which does not permit of questions 
 of law being mixed up with questions of fact, but calls upon 
 the jury to pronounce upon facts alone, and rests the responsi- 
 bility of applying the law r to these facts upon the judge alone. 
 55 Geo. III. c. 42. 59 Geo. III. c. 35. 
 
 831. So soon as jury trial has been moved for, the 
 peremptory direction of the statute is that "the Sheriff shall 
 '" appoint the action to be tried before a jury of seven 
 " persons." It is not necessary at this stage to fix a date for 
 the trial, but it may be convenient to do so. In general, how- 
 ever, the date of trial is not then fixed, but the interlocutor 
 simply appoints the case to be tried by jury in terms of the 
 statute. 
 
 Appendix, s. 32. 7 Ed. VII. c. 51, s. 32. 
 
 832. When a case has been appointed to be tried before a 
 jury, it does not seem competent, even of consent, to dispose 
 of the case otherwise. It has not been contemplated that a 
 party who has moved for, and obtained, an order for jury trial 
 may change his mind. An interlocutor appointing a cause to 
 be tried before a jury is not appealable, the Sheriff cannot 
 recall his own order, and there is no provision for abandoning
 
 350 CIVIL JURY TRIAL. 
 
 a jury trial and reverting to a proof before the Sheriff. 
 Accordingly, the jury trial, once ordered, must proceed, or the 
 party not proceeding runs the risk of decree being asked 
 against him under the default procedure rule. There 
 is no class of case in which it is so necessary, as 
 in thai which may be sent to trial by jury, to make sure that 
 all facts upon which either party intends to rely are averred 
 on record, because it is a statutory direction to the Sheriff 
 presiding at the trial that at the close of the evidence he is 
 to put to the jury the questions of fact upon which they are 
 to give their verdict; and, of course, questions will only be 
 put to the jury which are covered by averments on record. 
 
 Appendix, s. 31, 32. 2 & 3 Ceo. V. c. 28, s. 6. 
 
 7 Ed. VII. c. 51, s. 31. 
 
 833. If a party has omitted to set forth any fact in his 
 pleadings, he is precluded from obtaining a verdict from the 
 jury upon that fact, for the jury cannot pronounce upon any 
 new fact which may emerge in the course of the evidence, but 
 of which no notice has been given on record. Of consent, 
 probably, at the trial diet, to enable a question of fact to be 
 put to the jury, an amendment might there and then be made 
 upon the record; but otherwise, if the complexion of the case 
 should alter in the course of the trial, the only remedy appears 
 to be by way of amendment upon formal motion. This is 
 competent " at any stage of the cause," and a cause which is 
 being tried before a jury is not excepted. But an amendment 
 of the record, proposed during the progress of a jury trial, 
 is obviously a very different affair from an amendment proposed 
 in the course of a proof, and the procedure would involve the 
 suspension of the trial proceedings, the opening up of the 
 record, the return of the case to the adjustment roll, the closing 
 of the record, the allowance of proof, the ordering of jury trial, 
 all of new, thus rendering abortive the expense which had so 
 far been incurred, with the necessary result of a substantial 
 payment of expenses being made a condition of amendment. 
 These considerations emphasise the importance, in the class of 
 case which may go to a jury, of the careful inclusion in the 
 original pleadings of every possible fact which may have a 
 bearing upon the case. 
 
 Appendix, s. 32, Rule 79. 7 Ed. VII. c. 51, s. 32, Sch. I., 
 
 Rule 79.
 
 I'ROCKl >l T RK. 351 
 
 834. Each juror \\ lm is empanelled is entitled to a fee of 
 ten shillings per day. To meel this expense, the party who 
 moves for jury trial is required to deposit with the Sheriff- 
 clerk the sum of £3 10s. "on each day the trial proceeds 
 "before the proceedings commence." The proceedings 
 commence with the calling- of the diet. The party Liable for 
 this disbursement must therefore be prepared to deposit this 
 sum with the Sheriff-clerk, at the latest when the case is 
 called upon to proceed. After he lias been put into the jury 
 box, the juror would appear to be entitled to his ten shillings, 
 even although the case should come to an cud immediately 
 thereafter; but the depositor is entitled to get back his £3 10s. 
 if for any reason it becomes unnecessary to empanel a jury, as. 
 for instance, if a settlement is arranged on the eve of the 
 opening- of the trial. A juror is not entitled to any considera- 
 tion for attending the Court. He is remunerated only if he is 
 ^empanelled. 
 
 Appendix, s. 33. 7 Ed. YII. c. 51, s. 33. 
 
 835. The facts admitted on record, and the facts found by 
 the jury, are tog-ether the material to which the Sheriff is to 
 apply the law. The facts upon which the statutes direct the 
 Sheriff to put questions, and the jury to return answers, at 
 the close of the evidence, are probably only the disputed facts, 
 hut the tvJwle facts (both those admitted and those proved) may 
 
 •conveniently be included in the verdict of the jury, and must, 
 
 at all events, be included in the Sheriff's final interlocutor, 
 
 which, in the event of an appeal, becomes in effect a stated 
 
 ease for the appellate Court. 
 
 Appendix, s. 32, Rules 146, 148, 7 Ed. VII. c. 51, s. 31, Sch. I., 
 
 Form M. Rules 146-148. 
 
 2 & 3 Geo. V. c. 28, s. 6. 
 
 836. The evidence in a jury trial is directed to be recorded 
 
 in shorthand, but the notes need not be extended unless the 
 
 appellate Court order the record of evidence to be lodged, in 
 
 which event it is the appellant's duty to procure the shorthand 
 
 notes certified by the shorthand writer, and to lodge them 
 
 in the Court of Session. If all parties agree, and put in a 
 
 joint minute to that effect, a record of the proceedings may 
 
 be dispensed with, but in that event appeal is precluded. 
 
 Appendix, Rules 137, 147. Act of Sederunt, 5th January, 
 
 7 Ed. VII. e. 51, Sell. I., Rules 1909. 
 
 137, 147.
 
 352 CIVIL JURY TRIAL. 
 
 837. For a civil trial in the Sheriff Court, a jury is to be 
 cited, selected, and sworn according to the law and practice 
 in use in Scotland. Accordingly, all the directions of statutes 
 and Acts of Sederunt hitherto applicable only to civil juries 
 
 in the Court of Session, or to juries in criminal causes, are 
 
 now, so far as these are appropriate, also applicable in Sheriff 
 
 Court civil trials. Thus, as directed in the Court of Session 
 
 Act of 18G8, a juror is cited by registered post letter, directed 
 
 to him by the Sheriff-clerk at his residence, as stated in the 
 
 jurors' roll made up by the Sheriff-clerk, and a certificate of 
 
 posting under the hand of the Sheriff-clerk or his depute, is 
 
 equivalent to an execution of citation. So also, when a jury 
 
 is empanelled, the principle of selection of jurors will be by 
 
 writing- on separate slips the names of each of the panel of 
 
 fifteen, placing the names of the five special jurors in one 
 
 glass, and those of the ten common jurors in another, and 
 
 drawing from each alternately in order, commencing with one 
 
 from the special jurors and then in succession two from the 
 
 common jurors; but, as the number of the Sheriff Court jury 
 
 is seven, and not twelve, and only two are to be special jurors, 
 
 the ballot will be slightly varied from the direction of the 1868 
 
 Act by the second draw from the common jurors' glass being 
 
 three instead of two, as it would be for a jury of twelve. In 
 
 like manner also the jury when empanelled is sworn by the 
 
 Sheriff-clerk, who administers to them the oath prescribed in 
 
 181-3, as follows:— " You swear by Almighty God, as you shall 
 
 " answer to God at the great day of judgment, that you shall 
 
 " well and truly try this issue and a true verdict give according 
 
 " to the evidence." 
 
 Appendix, Rule 134. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 55 Geo. III. c. 42, s. 31. 134. 
 
 31 & 32 Vict. c. 100, s. 44-47. 
 
 838. The Sheriff Courts Act, 1!)07, declares that " the law 
 "and practice relating to the taking of evidence in proofs 
 "before the Sheriffs shall apply to jury trials," Accordingly, 
 it is competent to take evidence to lie in retentis, or to take 
 evidence on commission, and this the statute expressly recog- 
 nises, for it directs that evidence taken on commission, if the 
 deponing witness is dead, or for good reasons cannot attend the 
 trial, is to be read to the jury, and that at the request of either 
 party, in which respect the procedure differs from that in a 
 proof, where it is in the option of a party who has taken the
 
 PROCEDURE. 353 
 
 proof to put it in, or refrain from doing bo. So also, [\ is 
 
 competent to recover documents under specification, for flint 
 also is part of the practice in proofs. It is pari of that practice 
 also that the shorthand writer shall be paid by the parties 
 equally, and thai the Sheriff may make an order for his pay- 
 ment, and this accordingly applies also in jury trials. But 
 there is one part of the practice in proofs which obviously 
 cannot apply in jury trials, viz., the incidental appeal to the 
 Sheriff in the course of a proof upon a question of competency 
 of evidence or confidentiality of documents. These matters 
 are not within the general rule importing the practice in proofs 
 to jury trials, and there is an express provision in the jury 
 trial rules, which includes amongst the grounds of appeal to 
 the Court of Session the Sheriff's rulings upon the admission 
 or rejection of evidence. 
 
 Appendix, s. 31 (3), Rules 67. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 74, 137, 138. 139. 67, 74, 137, 138, 139. 
 
 839. Productions intended to be used at the trial ar< 
 
 directed to be lodged four days before the trial, but the Sheriff 
 
 may allow them to be produced at the trial " if he is satisfied 
 
 " that they could not reasonably have been produced earlier, 
 
 " and that reasonable notice had been given to the other parties 
 
 " of intention to produce at the trial." A similar, but much 
 
 more drastic, rule is adopted in Court of Session jury trials. 
 
 Production is there required to be made eight days before the 
 
 trial, and no documents are admitted at the trial unless of 
 
 consent, or by leave, upon a deposition on oath, giving good 
 
 reason for their not being lodged timeously. 
 
 Appendix, Rule 142. Act of Sederunt, 16th Feb., 
 
 7 Ed. VII. c. 51, Sch. I., Rule 1841, s. 19. 
 
 142. 
 
 4. Verdict. 
 
 840. The verdict of the jury must include answers to each 
 of the questions put by the Sheriff. After the lapse of one 
 hour, a verdict by a majority may be accepted. The jury also 
 fix the figure at which damages should be assessed, in the 
 event of the pursuer being entitled to damages, buf the jury 
 do not decide the legal question whether the pursuer is entitled 
 to an award of damages. That legal question is reserved for 
 the Sheriff. When they have answered the questions, and the 
 Sheriff-clerk has recorded their verdict, the duty of the jury 
 
 23
 
 354 CIVIL JURY TRIAL. 
 
 is over, and they are discharged. Whether upon the facts, 
 as found by the jury, the pursuer is entitled in law to damages 
 ia a question decided, not by the jury, but by the judge, after 
 hearing parties on a motion to apply the verdict. Such a 
 motion may be made by either party, and must he made within 
 fourteen days alter the verdict has been recorded. If no 
 motion is made, the proceedings appear to fall (for the proroga- 
 tion power under Rule 56 does not appear to cover extending 
 this fourteen days' period). 
 
 Appendix, Rule 146, Form M. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 146. 
 
 841. The expression " apply the verdict " in a Sheriff Court 
 civil trial has not, therefore, the same meaning as it lias in a 
 Court of Session trial, for there the jury, upon a mixture of 
 fact and law submitted to them in the form of an issue, upon 
 the evidence, upon the speeches of counsel, and the charge of 
 the judge, or upon unknown influences, decide the question 
 whether the pursuer is entitled to an award of damages, as 
 well as fix the amount of it ; whilst in the Sheriff Court the 
 jury do not decide the question of liability for damages. That 
 is argued before the Sheriff, upon the facts admitted, or 
 returned by the jury, and upon that the Sheriff may make 
 avizandum, and may " apply the verdict," either to the effect 
 of finding that the facts found by the jury do not infer legal 
 liability for damages, in which case he will grant absolvitor 
 or dismiss the action ; or to the effect of finding that the facts 
 found by the jury do infer legal liability for damages, in 
 which case he will decern for the amount of the jury's assess- 
 ment of damages, with the amount of which he cannot inter- 
 fere. In other words, what is meant in the Court of Session 
 by applying the verdict of a civil jury is simply giving opera- 
 tive effect to what the jury has already decided; whilst what is 
 meant by applying the verdict in a Sheriff Court case is 
 deciding, for the first time in the cause, whether or not certain 
 facts infer legal liability for damages. 
 
 Appendix, Rule 146. Act of Sederunt, 16th Feb., 
 
 7 Ed. VII. c. 51, Sch. I., Rule 1841, s. 34. 
 
 146. 
 
 5. Appeal. 
 
 842. This distinction further manifests itself in the appeal 
 provisions. What is submitted to review from the Sheriff
 
 APPEAL 
 
 Court is a final judgment of the Sheriff, not merely a verdict 
 
 of a jury, for the leading ground oi appeal, " thai the verdid 
 
 " has been erroneously applied by the Sheriff," can only o 
 
 that bis findings in law are not warranted by the jury'- find 
 
 in fact. In a Court of Session trial, the case is not, as in the 
 
 Sheriff Court, gathered up into finding's in fact and law in 
 
 interlocutor dorm. Accordingly, further procedure is not by 
 
 way of appeal, as in the Sheriff Court, but by way of bill of 
 
 exception or motion for new trial. But, in the Sheriff Court 
 
 jury trial system, the interlocutor of the Sheriff applying his 
 
 law to the jury's findings in fact is the final judgment in the 
 
 cause, subject to review only in the statutory manner, and on 
 
 the statutory grounds. 
 
 Appendix, Rule 148, Form M. 2 & 3 Geo. V. c. 28. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 148. 
 
 843. The Appeal Court may, if asked, consider (a) whether 
 the answers given by the jury are supported by the evidence 
 adduced; (b) whether evidence has been unduly refused, or 
 admitted; (c) whether the jury has been misdirected in respect 
 of matters to which exception has been taken at the trial, and 
 noted on the official shorthand record; (el) whether the jury's 
 assessment of damages is inadequate or excessive. But, as 
 regards all these matters, the only remedy for error is to direct 
 a new trial. A new trial may be ordered only if a majority 
 of the appellate judges sustain the appeal. If the judges are 
 equally divided in opinion, the verdict stands. 
 
 Appendix, s. 31. 7 Ed. VII. c. 51, s. 31. 
 
 844. If, however, the question raised in the appeal is 
 whether the Sheriff has properly applied the law to these 
 facts, that is to say, whether he has properly applied the 
 verdict, the Appeal Court need not send back the case for new- 
 trial, nor need they send it back to the Sheriff Court at all. 
 The direction to them is, if they think the Sheriff has 
 erroneously applied the verdict, themselves to " give judgment 
 " accordingly," that is to say, themselves to apply the law to 
 the facts; or, in other words, upon appeal, either to sustain 
 the findings in law of the Sheriff; or to recall them, and them- 
 selves pronounce judgment. 
 
 Appendix, s. 31, Rule 148, 10 Ed. VII. & 1 Geo. V. e. 51- 
 
 Form M. 2 & 3 Geo. V. c. 28. Form M. 
 
 7 Ed. VII. c. 51, s. 31, Sch. 
 I., Rule 148.
 
 356 CIVIL JURY TRIAL. 
 
 845. There is no incidental appeal competent in the course 
 of a jury trial, and in no circumstances is there any appeal 
 from the Sheriff-Substitute to the Sheriff. All questions 
 arising must await the final interlocutor, for then only is any 
 pari of the proceedings subject to review. Exceptions to the 
 Sheriff's rulings in the course of the trial are directed to be 
 noted, to his dictation, in the shorthand notes, and any excep- 
 tion so noted comes up for review, if and when there is an 
 appeal taken against the final interlocutor, but not otherwise. 
 The form of note of appeal includes misdirection of the jury 
 upon a point of law, and the appellant is directed to state the 
 point of law; but the scheme of the Sheriff Court civil jury 
 trial is based upon the jury having nothing to do with the 
 law, and so there is not, in the ordinary sense, any necessity 
 for the Sheriff to direct them in law. The misdirection which 
 is contemplated is probably a direction to the jury as to 
 accepting or rejecting testimony. 
 
 Appendix, Rule 148, Form M. 7 Ed. VII. c. 51, s. 27. 28. 
 
 31 (3), Sch. I., Rule 148. 
 
 84G. An appeal upon the ground that the verdict of a jury 
 is contrary to the evidence is not likely to prevail, unless it 
 can be shown that, upon no possible view of the evidence led, 
 could the result reasonably be arrived at which the jury's 
 verdict embodies. That a view of the evidence different from 
 that taken by the jury might be taken by some other person, 
 or even by the Court of Appeal, is not enough. It must be 
 clear that the evidence does not support the verdict. As the 
 " verdict " in a Sheriff Court jury trial is merely an answer 
 to specific questions upon matters of fact, the probabilities of 
 the answers not being warranted by the evidence led are very 
 much minimised, and appeals on this ground are not numerous. 
 The main advantage of the appeal provisions of the Sheriff 
 Court jury trial system lies in the review being accomplished 
 in the form of appeal against an interlocutor, enabling the 
 Court of review to correct an erroneous judgment, without 
 necessarily involving the parties in the cost of a new jury 
 trial. 
 
 847. As regards the admission, or rejection, of evidence, 
 the elements which enter into the question of competency are 
 the same in a jury trial as in a proof before the Sheriff. If 
 exception is taken to the rejection of evidence, it must be clear
 
 APPEAL. 
 
 before an appeal can be entertained (a) thai the evidence was 
 available; and (b) thai il was relevant. 
 
 Hogg v. Campbell, 1865, 3 M. 1022. 
 
 848. An appeal upon the ground that an award of damagi - 
 
 is excessive is not likely to be sustained unless there has 
 been some very gross mistake in the assessment. This is a 
 matter which is peculiarly within the province of a jury, and 
 the appellate Court will not readily interfere, unless the view 
 taken by the jury is obviously and grossly unreasonable. 
 
 Young v. Glasgow Tramway Co., Wallace v. West Calder Co- 
 
 1882, 10 R. 245. operative Society, 1888, 15 R. 
 
 M 'Master v. Caledonian Rail- 307. 
 
 way Company, 1885, 13 R. Casey v. United Collieries Com- 
 
 252. pany, 1907, S.C. 690. 
 
 '6. Form of Sheriff's Judgment. 
 
 849. Some dubiety has arisen as to the form which tbe 
 Sheriff's final interlocutor should take. The direction of the 
 statute is that the Sheriff is to apply the verdict and 
 grant decree accordingly. What seems plainly contem- 
 plated is that the Sheriff is to gather up in his final 
 interlocutor the whole facts in the ease, whether these fads 
 have been admitted on record or found by the jury. That is 
 to say, he is to write an interlocutor with findings in fact and 
 law, and add a Note if necessary. Of course, the Sheriff 
 cannot find any new facts for himself, but he can arrange 
 the admitted and proved facts in consecutive order, so as to 
 present a complete case, to which he is to apply the law. If 
 the Sheriff went beyond the facts, as admitted or as 
 found by the jury, then the verdict would not have 
 been correctly applied. But this interpretation of the 
 statute does not seem to have commended itself to the 
 appellate Court, in the only case in which the point has 
 been considered. That case is, unfortunately, baldly reported, 
 without any opinions, but it seems to import that the Sheriff is 
 to make a legal finding only. The Sheriff had, in the first 
 part of his interlocutor, set forth ''the facts as admitted by 
 " the parties or found by the jury." The legal finding which 
 followed was introduced by the words, " CTpon these facts finds 
 " in law." The Sheriff does not appear to have found any facts 
 at his own hand. Nevertheless, the objection taken to the
 
 358 CIVIL JURY TRIAL. 
 
 interlocutor was thai the findings in fact were incompetent, 
 because the Sheriff had no power to apply a verdict on facts 
 found by himself. This very technical objection was apparently 
 sustained, for the Appeal Court recalled the portion of the inter- 
 locutor which narrated the facts, and otherwise adhered to it 
 -that is to say, the Sheriff's Legal finding applying the verdict 
 seems to have been approved, although the convenient practice 
 of collecting all the facts in the final interlocutor seems to 
 have been disapproved. 
 
 Appendix, Rule 82. .M 'Vicar v. Robertson, 1910, 
 
 S.C. 396. 
 
 850. The Sheriff Court scheme of civil jury trial aims at 
 despatch and economy. As already pointed out, there is no 
 loom for delay by exceptions or appeals, and speech-making 
 is not encouraged. The 1907 Act provided that no person 
 should address the jury till the evidence has been concluded, 
 and that then " one speech only on behalf of each interest 
 " represented shall he made." This was repealed by the 1913 
 Act; but this does not seem to matter, for the direction still 
 stands that the practice of taking- evidence in proofs shall apply 
 to jury trials; and it is not the practice to make opening 
 speeches before a proof. The time for legal argument is not 
 before the jury, but before the judge, after the verdict has been 
 delivered . 
 
 Appendix. Rule 137. 2 & 3 Geo. V. c. 28, Sch. II. 
 
 7 Ed. VII. c. 51, Sch. I., Rules 
 140, 141. 
 
 851. When appeal is taken in a civil jury trial, it is the 
 duty of the Sheriff-clerk, within three days of receiving the 
 note of appeal, to transmit the process to Edinburgh, and also 
 to notify the appeal to the other parties in the cause. The 
 process at this stage does not include the notes of evidence, 
 which are not required to be extended or lodged unless ordered 
 by the appellate Court. Should the result of the appeal be 
 an order for a new trial, the process is re-transmitted to the 
 Sheriff-clerk. From the point at which it is resumed in the 
 Sheriff Court, the proceedings follow the directions as for an 
 original trial. A new jury will be cited, and the evidence 
 led of new, without reference to the former trial. 
 Act of Sederunt, 5th January, 1909.
 
 KXl'KXSKS. 
 
 7. Expenses. 
 
 852. The awarding of expenses in a Sheriff Court jury 
 trial, as in a Court of Session trial, is a matter with which 
 the jury lake no concern. Thai is in the bands of the Court 
 aloue. The principles regulating the awarding of expenses 
 
 are the same as in any other form of litigation. In the 
 genera] case, expenses follow -access, but this principle may 
 be qualified by a tender having been made. The Act of 
 Sederunt regulating Sheriff Court expenses is not quite clear, 
 but its effect -appears to be that the scale upon which tin- 
 expenses are to be taxed follows the same rule as in an action 
 tried before the Sheriff without a jury, except as regards the 
 special fees applicable to jury trials, which are subject to the 
 condition that where a pursuer obtains a verdict for less than 
 £50, the judicial costs are restricted to half-fees. 
 
 Appendix, Rule 146. Act of Sederunt, 10th April, 
 
 7 Ed VII. c. 51, Sch. I., Rule 1908, Gen. Reg. 3, Chap. II. 
 
 146'. 8 (b). 
 Act of Sederunt, 16th Feb., 
 
 1841, s. 35. 
 
 8. Wakening. 
 
 853. In the Court of Session, a jury cause is an exception 
 
 to the general rule, that an action falls asleep if not moved 
 
 in for a year and a day. If the issue ha- been adjusted and 
 
 signed, the process does nor fall asleep. In the Sheriff Court 
 
 a jury cause is not, in this respect, distinguished from any 
 
 other cause. If no interlocutor has been pronounced in it for 
 
 ;i year and a day it appears to fall asleep, and must be wakened 
 
 in the manner prescribed by the statute, before it can be dealt 
 
 with in any way. 
 
 Appendix, Rules 101-103. Act of Sederunt, 16th Feb., 
 
 7 Ed. VII. c. 51, Sch. I., Rules 1841, s. 47. 
 
 101-103. 
 
 9. Default. 
 
 854. Xor is there any difference between a jury cause and 
 any other cause in the Sheriff Court, as regards procedure, in 
 the event of the failure of either party to appear at the trial, 
 or at any other formal diet in the cause. In the Court of 
 Session, if the defender do not appear at the trial, it is iu the 
 option of the pursuer either to lead his evidence and ask a
 
 3G0 CIVIL JURY TRIAL. 
 
 verdict from the jury, or to ask the presiding- judge to report 
 
 the cause to the Inner House, to be dealt with as one in which 
 
 parties are held as confessed. If it is the pursuer who does 
 
 not appear, the defender is entitled to a verdict from the jury 
 
 without leading any evidence. Rut in the Sheriff Court the 
 
 procedure is much more simple, as well as more drastic. If 
 
 the parties are not present, or represented, at the trial diet, 
 
 when the case is called, it is not necessary to empanel a jury 
 
 at all, for the Sheri If may then grant decree by default upon the 
 
 closed record. If both parties are absent, the action will be 
 
 dismissed. If the pursuer alone is present, he will be entitled 
 
 to decree as craved in his initial writ. If the defender alone 
 
 is present, he will be entitled to decree of absolvitor. 
 
 Appendix, Rule 56. Act of Sederunt, 16th Feb., 
 
 7 Ed. VII. c. 51, Sch. I., Rule 1841, s. 46. 
 
 56. 
 
 10. House of Lords. 
 
 855. Under the system of jury trial which has been adopted 
 in the Sheriff Court, it is not quite clear whether there is an 
 appeal on law to the House of Lords. The restriction, which 
 precludes facts being reviewed by the House of Lords when an 
 action has originated in the Sheriff Court, still stands upon 
 the statute book, but if a final judgment in an ordinary action 
 following upon a proof may, as regards its law, be submitted 
 to review of the supreme tribunal, there seems no reason why 
 a final interlocutor following upon a jury trial should not also 
 be appealable. It is a final judgment quite as much as the 
 other. Xo doubt the grounds of appeal to the Court of Session 
 are restricted, but the main ground of appeal is upon the 
 question whether the legal result arrived at is warranted by 
 the findings in fact set forth, and this is just the question 
 which, in every case originating in the Sheriff Court, is 
 submitted to review in the House of Lords. There is nothing 
 in any of the statutes expressly prohibiting appeal from the 
 Court of Session to the House of Lords, and, in the absence of 
 statutory enactment to the contrary, it is thought that the 
 mere fact that the procedure which has culminated in a final 
 interlocutor of the Sheriff has been by way of jury trial, rather 
 than by way of proof, does not affect the rights of appeal 
 against that final interlocutor, if otherwise review of it is 
 competent. 
 
 6 Geo. IV. c. 120, s. 40
 
 CHAPTER XVI. 
 
 PROCEDURE UNDER THE WORKMEN'S 
 COMPENSATION ACT. 
 
 1. Introductory. 
 
 856. Xot the least responsible and important duty of the 
 Sheriff is the administration, in Scotland, of the legislation 
 which affords to a workman who has sustained injury in the 
 course of his employment compensation daring' his incapacity 
 for work, or to his relatives compensation for his death. It is 
 within the scope of this work to consider only the process aspect 
 of this branch of the work of the Sheriff Court. 
 
 857. The Workmen's Compensation Act of 1906, which re- 
 enacted and broadened the scope of the original Act of 1897, uses 
 English judicial terms, but the interpretation clause declares 
 that " County Court, judge of the County Court, registrar of the 
 " County Court, plaintiff, and rules of Court, as respects Scot- 
 land, mean respectively Sheriff, Sheriff-clerk, pursuer, and 
 ,x * Act of Sederunt." It is further enacted that applications 
 under the Act are to be heard, tried, and determined summarily 
 in the manner provided by section 52 of the Sheriff Court 
 (Scotland) Act, 1876. That statute has been lepealed by the 
 Sheriff Courts Act of 1907, but that later statute enacts that, 
 whenever in any statute any matter is directed to be dealt 
 with under section 52 of the Act of 1876, that direction shall 
 be read and construed as if it referred to section 50 of the 
 Sheriff Courts Act, 1907. Any application to the Court, 
 therefore, brought under the Workmen's Compensation Act, 
 1906, is a summary application, to which are applicable all 
 the appropriate enactments of the Sheriif Courts Acts, L907- 
 1913, as well as any process directions contained in the 
 "Workmen's Compensation Act itself, and the relative Acts of 
 Sederunt. 
 
 Appendix, s. 3 (/>), 50. 6 Ed. VII. c. 58, s. 13, Sch. 
 
 39 & 40 Vict. c. 70, s. 52. II., s. 17. 
 
 7 Ed. VII. c. 51, s. 3 (p), 50.
 
 362 WORKMEN'S COMPENSATION ACT. 
 
 2. Arbitration Aspect. 
 
 858. Some confusion has arisen as regards the process aspect 
 of the Workmen's Compensation Act, from the fact that the 
 genera] principle of the statute is thai disputes arising under 
 ii are to be settled by arbitration; but, although in the main 
 the spirit of the Ac! may be arbitration, there is also in it a 
 very decided element of litigation. Throughout the Act, the 
 compensation is referred to as a "claim" and procedure under 
 the Act is referred to as " proceedings for the recovery of " this 
 claim. The administrator of the statute, is referred to as a 
 judge, and his duties under this statute are expressly declared 
 to be part of his duty as a judge. An application under the 
 Act initiates a process at law, and, when the Sheriff has decided 
 the dispute, his decision becomes in fact, whatever it may be in 
 name, a decree of his Court. It is competent for the Sheriff 
 to dismiss an application as incompetent, and although, in 
 settling a dispute, the Sheriff may assume the character of an 
 arbitrator, the process is nevertheless a Court process, which 
 eventuates in an enforceable Court judgment, for an award of 
 compensation when registered in the Court books may be 
 enforced as if it were a recorded decree arbitral, so that, when 
 recorded, it becomes in effect a decree of Court. 
 
 6 Ed. VII. c. 58, s. 2, Sch. II.. M'Millan v. Singer Company, 
 
 s. 12. 1912, 50 S.L.R. 220. 
 
 3. Judicial Aspect. 
 
 859. Under the Sheriff Courts (Scotland) Act, 1907, a 
 summary application brought under a statute such as the 
 "Workmen's Compensation Act is an " action," for it is a "civil 
 " proceeding competent in the ordinary Sheriff Court." as 
 distinguished from a civil proceeding iu the Small Debt Court. 
 A "summary application," which may be made either at 
 common law or under statute, should not be confused with a 
 " summary cause," which is a creation of the Sheriff Courts Acts, 
 1907-13. Most applications under the "Workmen's Compensa- 
 tion Act are, no doubt, claims for payment of money, and 
 many of them are for sums under £50, but a workmen's 
 compensation case is specially excepted in the definition of a 
 " summary cause." 
 
 Appendix, s. 3 (d), (i), (p). 7 Ed VII. c. 51. s. 3 (d), (i), 
 
 (P)-
 
 JUDICIAL ASPECT. 363 
 
 860. An application under the Workmen's Compensation 
 
 Act, therefore, should be presented to the Court in the form of 
 
 the initial writ of the Sheriff Courts Act, 1913, for that 
 
 is the form in which every "action" is commenced, with tin- 
 
 exception of a petition for service of heirs, an application Eor 
 
 summary removing, or ;i Small Debt action. The warrant of 
 
 citation requires the defender to attend and answer the writ 
 
 upon a set date, which must not be earlier in any circumstances 
 
 than forty-eight hours from service. The normal inducias is 
 
 seven days, and fourteen days in Orkney and Shetland or other 
 
 islands, but the Sheriff may shorten or extend the induciae in a 
 
 summary application, just as in an ordinary action. 
 
 Appendix, Rules 1, 4, 5. ML'Quade v. Summerlee Coni- 
 
 7 Ed. VII. c. 51, Sch. I., Rules pany, 1908, 24 S.C.R. 107. 
 
 1, 4, 5. Trimble & Stewart v. Shaw, 
 
 Cochran v. M'Vean, 1908, 24 1908, 24 S.C.R. 173. 
 
 S.C.R. 105. Clark v. Grangemouth Inn 
 
 M'Cill v. Spencer, 1908. 24 Company, 1908, 24 S.C.R. 185. 
 
 S.C.R, 102. 
 
 4. PROCEDURE. 
 
 861. In a workman's compensation case, as in summary 
 
 applications generally, the Sheriff lias a perfectly free hand 
 
 as to procedure. Two things only are statutory — (a) he must 
 
 hear parties, and (b) lie must deliver his judgment in writing. 
 
 Bej^ond these statutory formalities, the only direction is that 
 
 he dispose of the case summarily. He is not required to record 
 
 the evidence, although he may order it to be recorded, in which 
 
 event the directions of the Sheriff Court- Act, 1907, as regards 
 
 the shorthand writer will apply. Nor are formal pleadings 
 
 requisite, although, if the initial writ do not fully disclose, 
 
 as it ought to do, the exact grounds of the claim, or if the 
 
 defence is intricate or peculiar, it may be convenient, and it 
 
 is competent, to order answers. 
 
 Appendix, s. 50, Rule 67. 7 Ed. VII. c. 51, Sch. I., s. 
 
 50, Rule 67. 
 
 5. Decree in Absence. 
 
 8G2. Neither the "Workmen's Compensation Act, aor the 
 Sheriff Courts Acts, contemplate in any express enactment the 
 case of an unopposed application by a workman for compensa- 
 tion. An unopposed application does not necessitate arbitration 
 proceedings, for the arbitration principle does not come into
 
 304 WORKMEN'S COMPENSATION ACT. 
 
 operation ai all until some question arises under the Act, and 
 no question can arise till a defender appears to oppose the 
 claim made against him. At first the application is before the 
 judge in his judicial capacity. If the defender do not appear 
 when cited, there appears to be no reason why decree in absence 
 should not be granted, in the same manner as in any other 
 undefended process, and be extracted after seven days ; or, if 
 the pursuer do not appear, there seems to be no reason why 
 the defender should not take protestation. 
 
 Appendix, Rule 23. 7 Ed. YII. c. 51, Sch. I., Rule 
 
 6 Ed. VII. c. 58, s. 1 (3). 23. 
 
 863. The provisions of the Sheriff Courts Acts, 1907-1913, 
 as to reponing a defender are not expressly made applicable 
 to a summary application. But neither is reponing expressly 
 barred. The statute says that the procedure rules are appli- 
 cable to all civil causes, and an application under the Work- 
 men's Compensation Act is a civil cause. There seems, there- 
 fore, no reason why a defender should not be reponed. At 
 all events, a defender has his remedy where the decree in 
 absence is for a capital sum, by way of suspension or reduction ; 
 where the decree is for a weekly payment, the Workmen's 
 Compensation Act itself provides a remedy, for the provision 
 entitling either party to seek review of a weekly payment is 
 not affected by the form of the judgment awarding the 
 compensation. 
 
 Appendix, s. 5 (5), Rules 27, 7 Ed. VII. c. 51, s. 5 (5), 39, 
 
 33. Sch. I., Rule 27, 33. 
 
 6 Ed. VII. c. 58, Sch. I., s. 16. 
 
 6. Decree by Default. 
 
 Slit. A more complicated question, and a more important 
 one, because it is more likely to arise, is whether in a work- 
 man's compensation case it is competent to pronounce a decree 
 by default. By t lie time such a question is likely to arise, the 
 process will have reached the stage at which the Sheriff has 
 entered upon his duty in his character of statutory arbiter, and 
 has in that capacity fixed a diet for hearing evidence, and 
 disposing of the application. At this diet, the statute 
 contemplates that both parties will be represented. There are 
 no process directions in the Workmen's Compensation Act
 
 DECREE BY DEFAULT. 365 
 
 itself, beyond the general st ;i t c im- n I , to which reference has 
 been made, that the duty of the judge under this statute 
 (including his office of arbitrator) "shall, subject to rules of 
 "Court, be part of the duties of the Court." The "nil 
 "Court" in Scotland arc the process directions contained in 
 the Sheriff Courts AcN, L907-1913, so Ear as appropriate, along 
 with any special directions set forth in any Acts of Sederunt 
 which may be enacted by the Court of Session, in virtue of 
 powers to that effect contained in both the Sheriff Courts Acts 
 and in the Workmen's Compensation Act. 
 
 Appendix, s. 40. 6 Ed. VII. c. 58. s. 1 (3). 13, 
 
 Sch. II. (2), (12). 
 
 865. The only one of the presently existing rules of Court 
 ■which affects this particular question is the default rule of 
 the Sheriff Courts Act, 1907. That rule is expressed in broad 
 terms, and it applies to any defended " action," including a 
 contested summary application. A contested claim under the 
 Workmen's Compensation Act is, in process law and language, 
 a defended action. Accordingly, when either party fails to 
 appear at the trial diet, the Sheriff may ex facie decide in favour 
 of the party who does appear, and, if neither party appear, he 
 may dismiss the application. That the Sheriff has by that 
 time become a statutory "arbitrator" does not seem to affect 
 the question. He is still acting in the discharge of " part of 
 "the duties of" his Court, which seems to imply that he is 
 entitled to apply the ordinary rules of practice to any set of 
 circumstances in which a rule of practice is applicable. 
 Besides, when there has ceased to be contesting party, there 
 has ceased to be a contest, is a principle recognised in arbitra- 
 tion practice, as well as in Court practice. 
 
 Appendix. Rule 56. 7 Ed. VII. c. 51. s. 3 (cl). Sch. 
 
 6 Ed. VII. c. 58, Sch. II. (12). I., Rule 56. 
 
 866. There is a decision of the Supreme Court which, at 
 first sight appears to negative the proposition that granting 
 decree by default is a competent proceeding in a workmen's 
 compensation case, but which, in the present state of the law, 
 it is thought does not now carry that inference. What had 
 happened in that case was that, at a trial diet, one of the 
 parties (as it happened, the employer) did not appear, and the 
 Sheriff gave decree by default. On appeal, the Court held that
 
 366 WORKMEN'S COMPENSATION ACT. 
 
 a decree by default was nol an appropriate finding, and that 
 the Sheriff should have proceeded with the inquiry and decided 
 the questions of Liability, and extent of the liability, for 
 compensation, upon which questions he was sitting as a 
 statutory arbitrator, and was required to perform his office, 
 whether both contesting parties were represented or not, the 
 Lord President remarking thai " It is quite in the spirit of the 
 "Workmen's Compensation Act that one of the parties should 
 "place such confidence in the good sense of the Sheriff that 
 " he should take no part in the proceedings, hut leave the 
 ■• Sheriff to ascertain the facts for himself." The Sheriff Court 
 litigant, who has such confidence in the Court, and such con- 
 fidence in his own case, as to dispense with the customary 
 courtesy of attending before the Sheriff to support his case, is 
 not known in actual Sheriff Court experience, and conducting 
 any contest with one side only represented is not, in Scotland, 
 consisted with either arbitration practice or the general prin- 
 ciple of process law, that, in a contested process, there is 
 always an actual contestor on each side, as well as an actual 
 subject of dispute. 
 
 The United Collieries v. Gavin, 1899, 2 F. 60. 
 
 867. The Sheriff Courts Act, 1907, makes the principle 
 
 applicable to every " action " (which includes an application 
 
 under the Workmen's Compensation Act) that a contesting 
 
 party who does not appear to support his side of the contest is, 
 
 in the eye of the law, thereby regarded as confessing that he 
 
 cannot support it, and that the other side must prevail. Under 
 
 the Sheriff Court Acts of 1853 and 1876 doubt existed as to 
 
 whether the provisions as to decree by default were of universal 
 
 application. In Gavin's case the Lord President said, "If it 
 
 "had been demonstrated that the procedure prescribed by 
 
 •'section 52 contained, as a statutory part or ingredient, a 
 
 "duty on the Sheriff to grant decree by default in all cases 
 
 •'in which there was non-compearance at the proof, then I 
 
 "should have reluctantly yielded to the conclusion that the 
 
 "anticipation formed thai the matter should be looked into 
 
 " by the Sheriff had been defeated, and that the litigious (dement 
 
 "prevailed over the spirit of arbitration." The statutory 
 
 ingredient here desiderated has now been included in the 
 
 Sheriff Court code of process law. and a contested application 
 
 under the Workmen's Compensation Act does not now there-
 
 DECREE BY DEFAULT. 367 
 
 fore appear to differ from any other contested action, so thai 
 a party not appearing to maintain his case may be regarded 
 
 as not insisting- in it, and a party who is not insisting- in his 
 claim is, in effect, acquiescing in the process being endeo 1 by 
 
 decree by default being pronounced against him. 
 
 A I ndix, Rule 56. 7 Ed. VII. c. 51, s. 3 [d), E 
 
 16 & 17 Vict. c. 80, s. 6. I.. Rule 56. 
 
 39 & 40 Vict, c. 70. s. 20, 52. 
 
 8G8. Even upon the strictest view — that the Sheriff is 
 throughout the whole process an arbiter, and not a judge — 
 he is at all events an arbiter acting under special procedure 
 directions, for the Workmen's Compensation Act directs that 
 the rules of the Sheriff Court are to be given effect to; and 
 the rules of the Sheriff Court do not recognise procedure going 
 on in any process in which there has ceased to be a contra- 
 dictor. The granting of decree by default, however, is not 
 compulsory ; and if there is any room for the suggestion that 
 a party is absent through inadvertence, the convenient course 
 is always open to adjourn the diet under certification, and 
 appoint the party appearing to intimate this to the absent 
 party. 
 
 6 Ed. VII. c. 58, Sch. II., s. 12. 
 
 7. Medical Refeeek. 
 
 869. When there is a conflict of medical testimony in any 
 case it is competent, and it is usual, although it is not obliga- 
 tory, for the Sheriff to make a remit to one of the medical 
 referees under t lie Act. But this is competent only after proof. 
 It is not competent to make a remit to a medical referee, in 
 substitution for proof. When, however, tlie question at issue 
 is a purely medical question, upon which if proof is taken 
 there is almost certain to be a conflict of medical testimony, 
 with most likely a remit, it is a convenient and not uncommon 
 practice to save time and expense by i emitting of consent to 
 a medical referee, the conflicting medical reports being put 
 in process, and of consent held to be the medical testimony in 
 the case, and proof otherwise being renounced. 
 
 6 Ed. VII, c. 58, Sch. II., s. Carroll v. Cray. 1910. S.C. 
 
 15. 700. 
 
 Statutory Rules, 27th June, 
 
 1907, Rules 20, 29.
 
 368 WORKMEN'S COMPENSATION ACT. 
 
 8. Memorandum of Agreement. 
 
 870. It has been a delusion in regard to this workmen's 
 legislation, from its inception, that it could be worked without 
 involving' litigation, but it has always been plain to all 
 concerned in the administration of it that the elimination of 
 the litigious element is a vain dream, and that, to use the 
 Lord President's expression, "the litigious element prevails 
 "over the spirit of arbitration." Much, however, is possible 
 to those who are anxious to avoid litigation, and, inter alia, 
 this statute provides machinery for accomplishing' the unique 
 result of a claimant obtaining what is in effect a Court decree, 
 without presenting to the Court a writ asking for it. It is 
 open to either an employer or an employee to present to the 
 Sheriff-clerk a memorandum of an agreement for compensa- 
 tion, and this, when recorded in the Court register, has all 
 the force and effect of a Court decree. Very many such 
 memoranda are recorded without opposition, and so never come 
 before the Sheriff at all. But a memorandum is not recorded 
 as matter of course, for it may not be mutually accepted. The 
 Sheriff -clerk, accordingly, although bound to accept any 
 memorandum tendered to him, is directed to refrain from 
 recording it for at least seven days, and to send a copy to 
 other parties interested, along with a registered post letter 
 requesting to be informed within " a reasonable specified time " 
 whether the memorandum is objected to. 
 6 Ed. VII. c. 58, Sch. II., s. 9. 
 
 871. If he does not receive, within that time, intimation 
 that it is objected to, then the Slier iff -clerk may record the 
 iioreement, unless he himself thinks he should refer it to the 
 Sheriff, as in some circumstances he may do. If the recording 
 is objected to, then the Sheriff-clerk notifies the party who 
 tendered the memorandum that a warrant from the Sheriff 
 is required before it can be recorded. Very many applica- 
 tions, therefore, under the Workmen's Compensation Act have 
 for their object the procuring of this warrant, authorising the 
 SI i eriff-clerk to record the memorandum. But, curiously 
 enough, there is no express process direction as to how the 
 party desiring to have the memorandum recorded is to proceed 
 to obtain the necessary warrant. The evident expectation of 
 the Act of Sederunt was that, when the objector complied
 
 MK.MOKANMU OF A( JUKKMENT. 369 
 
 with Article II, by aotifying the Sheriff-clerk within the 
 prescribed time thai he objected to the memorandum being 
 recorded, be should also ai the aame time comply with Article 
 12, by lodging a minute setting forth his grounds of objection, 
 and then thai the memorandum and the minute of objections, 
 without any other writ, should dorm the process in which (In- 
 Sheriff should granl or refuse the warrant to record. But, 
 unfortunately, this expectation has not been realised in the 
 Language of the Act of Sederunt, for the objector is not 
 expressly enjoined to lodge his minute of objections along 
 with his notice that lie objects to the recording. It frequently 
 happens, therefore, thai an objector contents himself with 
 obeying- the mere letter of the Act of Sederunt, disregarding 
 its spirit, and that, when he receives notice that a memorandum 
 has been tendered, he contents himself with simply saying that 
 he objects to its registration, which is all Article 11 requires 
 him to do. 
 
 6 Ed. VII. c. 58, Sch, II. A«t of Sederunt, 26th June,. 
 
 1907, s. 11. 
 
 872. In that event there is no process which the Sheriff- 
 clerk can lay before the Sheriff, in which he can pronounce 
 any order. It is not to be supposed that the party objecting 
 was intended to have the sole determination of whether the 
 memorandum should be recorded, which he would have if 
 the other party cannot move, for there is no time limit within 
 which the minute of objections need be lodged, and the objector 
 might never lodge it. The other party must also be entitled 
 to force the operation of the Act, and his readiest mode appears 
 to be to apply to the Court for a warrant to record the 
 memorandum. This, as an independent civil proceeding- 
 initiated in the Sheriff Court, should probably strictly be done 
 by way of initial writ. But, as the memorandum is already 
 with the Sheriff-clerk, and as a minute is the form the Act 
 of Sederunt prescribes for preventing its registration, it is 
 also an appropriate form for forcing its registration. The 
 crave of the writ or minute will be to grant warrant to 
 the Sheriff-clerk to register the memorandum, and it a minuti 
 is used a copy of the memorandum should be attached to the 
 minute. The Sheriff will fix a diet, and dispose of the question 
 whether or not the memorandum should be recorded. In this 
 process, it is competent for the objector to lodge his minute 
 of objections; indeed, as this is ; , statutory duty upon him, 
 24
 
 370 WORKMEN'S COMPENSATION ACT. 
 
 the first order will be to ordain him within a fixed time to do 
 
 so, if lie lias not done so voluntarily. 
 
 6 Ed. VII. c. 58, Sch. II., s. 9. M'Vey v. Dixon, Limited, 1910, 
 
 At of Sederunt, 26th June, S.C. 544. 
 
 1907, s. 9, 11, 12. 
 
 873. If a memorandum correctly expresses an agreement 
 actually made, it is competent to record it, even if, at the 
 moment, the circumstances have changed, as, for instance, 
 the incapacity of the workman has ceased by the time the 
 memorandum is presented to the Sheriff-clerk; because the 
 workman might at some later date want to found upon the 
 agreement, as, for instance, in case of a recurrence of 
 incapacity attributable to the same accident. Accordingly, if 
 it is conceded that an agreement was actually made, an 
 application for warrant to record it is competent. But the 
 employer may bring an application at the same time for 
 review of the compensation, and crave that it be ended or 
 diminished. 
 
 Cammick v. Glasgow Iron Com- Russell v. North British Loco- 
 
 pany, 1901, 4 F. 198. motive Company, 1908, 24 
 
 Fleming v. Blackwood, 1908, 24 S.C.R. 367. 
 
 SCR 111 M'Vey v. Dixon, 1910, S.C. 
 
 544. 
 
 874. If the Sheriff is of opinion that the memorandum of 
 agreement ought to be recorded only upon conditions, he is 
 not bound to grant an order to record de piano, but may add 
 conditions, as, for instance, that the recorded memorandum 
 is not to be a ground for a charge till a certain date ; or that 
 its becoming operative is conditional upon certain events. 
 
 Matthews v. Baird, 1910, S.C. 689. 
 
 875. When an application of the employer to have com- 
 pensation ended, and an application by the workman to have 
 a memorandum of agreement recorded, are pending before the 
 Court at the same time, the Sheriff is not bound to grant 
 warrant to record the memorandum, even if it is admitted that 
 it correctly sets forth the agreed upon terms. The general 
 case in which there are tw<o applicants is where an employer 
 has, upon the occurrence of an accident, at his own hand, at 
 once begun to pay compensation ; but has later on stopped 
 paying it, on the ground that incapacity has ceased. There
 
 MEMORANDUM OF AGREEMENT. 371 
 
 may be no answer to the memorandum excepl thai the incapa- 
 city has ceased ; and, if the employers are righl in Baying thai 
 it has ceased, ii would be obviously unfair thai the memo- 
 randum should be recorded. It is accordingly competent for 
 the Sheriff to lake the two applications together, and to fix 
 the Bame date of tria] : or he may sist the application to record 
 till the application to end or diminish has been disposed of. 
 
 M'Ewan v. Baird, 1910, S.C. M'Vey v. Dixon, 1910, S.C. 544. 
 
 436. 
 
 876. In the case of a fatal accident, what the Workmen's 
 Compensation Act seems to contemplate is that the dependants 
 of a workman who is killed by accident will remain alive till 
 they have claimed compensation. The case of a dependant 
 dying after the workman, but before the dependant has made 
 the claim emerging to him upon the workman's death, has not 
 been expressly provided for, and legal opinion has confli 
 on the question whether the claim emerging to a dependant 
 is a vested right, which may be made good by the executor 
 of a deceased dependant. It has now, however, been definitely 
 decided that the right to compensation conferred by the statute 
 upon dependants of a deceased workman vests in them at his 
 death, and that, although a dependant may have died without 
 making a claim, his representatives may claim, subject, of 
 •course, to the restrictions of the statute. An application by 
 an executor of a dependant is accordingly competent. 
 
 Hendry (Simpson's Executrix) v. United Collieries, Limited, 
 1910, SC. 709. 
 
 9. Jurisdiction. 
 
 ST 7. An application under the Workmen's Compensation 
 Act may competently be brought in any Sheriff Court in 
 Scotland, if both parties reside within the jurisdiction of that 
 Court. If they do not both so reside, then it must he brought 
 in the Sheriff Court of the sheriffdom, or district of a sheriff- 
 dom, where the accident occurred, which in the case of 
 industrial disease is the place where the workman was last 
 employed in the occupation alleged to have caused the di> 
 If the accident occurred at sea, the action may be brought in 
 the Sheriff Court within whose jurisdiction both the ship and 
 the shipmaster are, at the time when intimation of the claim or
 
 372 WORKMEN'S COMPENSATION ACT. 
 
 service of the application is made, or in the Court within whose 
 jurisdiction the managing owners, or manager of the ship, or 
 any one of them, resides or has a place of business. 
 Act of Sederunt, 26th June, 1907, s. 4. 
 
 878. The scope of the jurisdiction of the Sheriff Court to 
 entertain a claim under the Workmen's Compensation Act is 
 thus nunc restricted than its general jurisdiction, but any 
 inconvenience which might result is obviated by the very wide 
 powers of transfer. If the case can, in the opinion of the 
 Sheriff, be more conveniently tried in any other Sheriff Court 
 in Scotland, or in any County Court in England or Ireland, 
 the Sheriff has power, on the motion of any of the parties, to 
 remit the case to that Court. When an order for transfer is 
 made, the duty of the Sheriff-clerk is to transmit the process 
 to the Sheriff-clerk, or registrar, of the Court named in the 
 order, and to transfer to him any consigned money held in 
 connection with the case, which then proceeds to a finish in 
 the Court to which it has been remitted. There is no appeal 
 againsl an order transferring a workman's compensation case 
 from one Court to another, as there is under the transfer power 
 of the Sheriff Courts Act, 1907. The Sheriff's order trans- 
 ferring a workman's compensation case is final, and not subject 
 to review, for the Workmen's Compensation Act does not 
 recognise any appeal from the Sheriff-Substitute to the Sheriff. 
 
 Appendix, Rule 20. Act of Sederunt, 26th June,. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 1907, s. 5. 
 
 20. 
 
 10. Assessor. 
 
 (ST!). At the trial the Sheriff may, if he so desire, have the 
 assistance of a medical assessor, selected from the list of 
 medical referees appointed by the Secretary for Scotland. 
 There is no express right on the part of the litigants to move 
 for an assessor, as in nautical causes under the Nautical 
 Assessors (Scotland) Act, 1894, and relative Act of Sederunt; 
 but one or both parties may move for it, or the Sheriff may ex 
 proprio motu call in a medical referee as assessor. 
 
 57 & 58 Vict. c. 40. Act of Sederunt, 8th Dec, 
 
 6 Ed. VII. c. 58, Sch. II., s. 1894. 
 
 5. Regulations, 27th June, 1907, 
 
 s. 19.
 
 ASSESSOR, 373 
 
 11. Evidence. 
 
 880. The genera] rules applicable to the conduct of proofs 
 apply also to the taking of evidence in an application under 
 
 the Workmen's Compensation Act, bu1 il is not accessary to 
 
 keep a record of the evidence. It is accordingly competenl to 
 
 take evidence to lie in retentis, to take evidence on commission, 
 
 to recover documents on commission, to inspect the locus of an 
 
 accident, to remit to a man of skill, or generally, for the due 
 
 instruction of the Court upon the facts, to follow any practice 
 
 not inconsistent with the leading- direction of the statute that 
 
 such applications are to be disposed of summarily. 
 
 Appendix, s. 3 (/>), 50. 7 Ed. VII. c. 51, s. 50. 
 
 6 Ed. VII. c. 58. Sch. II. , s. 
 
 17. 
 
 12. Judgment. 
 
 881. The only statutory direction as to the judgment is 
 that it must be in writing. As, in general, there are no 
 shorthand notes of evidence, the common practice is to gather 
 up a statement of the case in the shape of consecutive findings 
 in fact, which, in the event of an appeal, can be adopted as 
 the statement of facts in a stated case. The narration of the 
 facts in this way is also convenient for the parties, as it enables 
 them to judge of the possibilities of an appeal. But, so far as 
 statutory obligation is concerned, all that the Sheriff is required 
 to decide is whether the claimant is entitled to the compensa- 
 tion sought, and, if so, to what amount? 
 
 Appendix, s. 50. 7 Ed. YII. c. 51, s. 50. 
 
 882. The party who is sued is not necessarily the party who 
 is ultimately liable in the compensation, for it frequently 
 happens that a workman is injured whilst doing work for some 
 person other than his own wage-paying employer — as. Eor 
 instance, when the workman is an employee of a sub- 
 contractor. The principal is. under the statute, nevertheless 
 liable to the workman in the first instance, with righl of relief 
 against the actual employer, and the question of liability and 
 thai of indemnity may both be settled in the same process. 
 When a principal is sued, he may move the Court to order 
 service upon the party from whom he claims indemnity. This 
 party may enter appearance, and become a party in the cause,
 
 374 WORKMEN'S COMPENSATION ACT. 
 
 and, of consent, his Liability to indemnify the principal may 
 
 be summarily, and anally, settled in that process. The party 
 
 from whom indemnity is claimed is nut, however, bound to 
 
 appear in that process, but, if he elect not to enter appearance, 
 
 he is haired from afterwards, in any other process, challenging 
 
 the validity of the award whicdi may be made to the workman. 
 
 6 Ed YII c 53, s. 4. Act of Sederunt, 26th June, 
 
 1907, s. 7. 
 
 883. In a similar manner, the party truly liable in a claim 
 arising' in respect of incapacity or death, caused by any of the 
 statutory scheduled diseases, contracted within a year, may 
 be brought into a process not originally directed against him. 
 The compensation is primarily recoverable from the employer 
 who last employed the workman, during the twelve months, but 
 the workman is required to disclose all the employers with 
 whom he has worked during the year, and any or all of them 
 may in turn be made parties, by service of a copy of the applica- 
 tion and of a statement by an employer, who has been made a 
 party, against a prior employer, that the disease was contracted 
 whilst the workman was in the service of that prior employer. 
 This case differs from that of the sub-contractor called for his 
 indemnity interest by a principal who is being sued. He 
 has the option of entering appearance or not doing so. In the 
 case of the industrial disease, the prior employer has no option, 
 for the execution of service upon him makes him a party in 
 the cause. 
 
 6 Ed. VII. c 58, s. 8, Sch. III. Act of Sederunt, 26th June, 
 
 1907, s. 8. 
 
 884. In these cases of possible divided responsibilty, the 
 usual rules will apply, as to liability for expenses of co- 
 defenders. If the applicant has properly sued the party 
 against whom the statute entitles him to proceed— as, for 
 instance, the principal upon whose work he was engaged at 
 tli" moment of the accident, or the last employer in the case' 
 of an industrial disease claim — the applicant will not, unless in 
 very exceptional circumstances, be held liable in expenses to 
 the party sued, although that party may succeed in clearing 
 himself, and devolving the liability for the compensation upon 
 some other person. Xor is the applicant, although he may be 
 altogether unsuccessful in obtaining an award against anybody, 
 liable in expenses to any defender whom he did not call, but.
 
 JUDGMENT. 375 
 
 who w;is brought in by tlie statutory defender, in virtue of the 
 statutory powers referred to. The statutory defender, how- 
 ever, may be liable to another defender whom be brings in, if 
 
 he fails to shin the responsibility on to his shoulders. When- 
 several defenders are broughl in, as may occur in an industrial 
 disease case, each party who calls a prior employer will, as 
 regards expenses, lake the risk of failing to fasten the liability 
 upon the party he has brought in. 
 
 13. Sheriff-clerk's Powers and Duties. 
 
 885. Some of the duties in administering the Workmen's 
 
 Compensation Act fall to be performed by the Sheriff-clerk, 
 
 without the intervention of the Court — as, for instance, in the 
 
 matter of the medical examination of a workman who is 
 
 making a claim for compensation. When a workman has 
 
 given notice of the occurrence of an accident, the statute 
 
 gives the employer the right to require the workman to submit 
 
 himself for examination to a medical man, named by the 
 
 employer; and, if the workman does not comply with this 
 
 request, his rights under the statute are suspended till he does 
 
 comply. So also, a workman who is receiving weekly 
 
 payments, is required to submit himself to the like medical 
 
 examination from time to time. But, if the parties do not 
 
 agree as to the workman's condition or fitness for employment 
 
 after such examination, they may together requesi that he be 
 
 examined and reported upon by a medical referee. This 
 
 application takes the form of a minute signed by both parties. 
 
 It must contain a statement of the facts which render appeal 
 
 to a medical referee necessary, and there must be produced with 
 
 il the reports of the medical men who have already examined 
 
 the workman, either at his own instance or that of the 
 
 employer. The Sheriff-clerk does not require to submit this 
 
 minute to the Court, but, if he finds it in order, he himself 
 
 sends the papers to one of the official medical referees. He 
 
 also, after satisfying himself that the workman is able to do 
 
 so, directs the workman to attend the medical referee for 
 
 examination, and when the medical referee has reported he 
 
 intimates this to the parties, allows the report to be inspected, 
 
 and, if desired, furnishes parlies with a copy. 
 
 6 Ed. VII. c. 58, s. 8, Sch. I.. Act of Sederunt, 26th June, 
 
 4, 14, 15. 1907, s. 9, 15. 
 
 Regulations, 27th June, 1907.
 
 376 WORKMEN'S COMPENSATION ACT. 
 
 880. It is so also as regards the obtaining by a work man 
 of a statutory certificate for residence abroad. The statute 
 provides that, "if a workman receiving a weekly payment 
 "(cases to reside in the CTnited Kingdom, lie shall thereupon 
 "cease to be entitled to receive any weekly payment unless 
 "the medical referee certifies thai the incapacity resulting from 
 '"•'the injury is likely Io be of a permanent nature." In tins 
 case, the workman presents a minute craving a reference to a 
 medical referee as to whether his incapacity is likely to be 
 permanent. "The Sheriff-clerk, on being satisfied after 
 " hearing parties, if he thinks it necessary, that the applicant 
 " has a bona fide intention of ceasing to reside in the United 
 "Kingdom," himself remits to a medical referee, directs the 
 workman to attend him, and receives and communicates the 
 referee's report in the same manner as in the case of a joint 
 reference. The Sheriff does not intervene at all, unless the 
 Sheriff-clerk is not satisfied of the applicant's intention to 
 go abroad. If he is in doubt upon this, and if the applicant 
 desires the matter to be referred to the Sheriff, the Sheriff-clerk 
 may refer this matter to the Sheriff, " who may make such 
 " order as he may think fit," but his intervention is to settle 
 this single point of the workman's residence-intentions. Other- 
 wise, the working out of the statutory directions remains with 
 the Sheriff-clerk. If the workman's incapacity is certified by 
 the medical referee as likely to be permanent, the Sheriff-clerk 
 obtains for reference a specimen signature of the workman, and 
 furnishes him with full instructions for obtaining his 
 compensation remitted to him abroad, upon proper receipt and 
 certificate of identity. 
 
 6 Ed VII. c. 58, Sch. I. (18). Act of Sederunt, 26th June, 
 
 1907, s. 16, Forms 6-11. 
 
 887. The Sheriff-clerk is the Keeper of the Statutory 
 Register, and the official to whom is committed the carrying 
 out of the statutory directions as regards the recording of a 
 memorandum of agreement, or other order, which is directed 
 to be entered in the official register. But there is one situation 
 in which, instead of following the official routine as to 
 intimation, &c, the Sheriff-clerk may refer a tendered 
 memorandum of agreement to the Sheriff, who in that event 
 himself disposes of the question of its registration. That is 
 where the agreement refers to (a) the redemption of a weekly
 
 SHERIFF-CLERK'S POWERS AND DUTIES. :;77 
 
 paymenl by a Lump aum; (b) compensation payable to a person 
 under legal disability; (c) compensation payable to dependants. 
 If the Sheriff-clerk has reason to believe thai the sum is 
 inadequate, or thai the agreemenl has been obtained by Eraud 
 or undue iufluence, he may refuse to record the memorandum 
 and refer the matter to the Sheriff. The procedure is thai the 
 Sheriff-clerk puts in a minute setting forth the grounds of his 
 refusal to record, and the matter then passes from him to the 
 Sheriff, who finally disposes of it. 
 
 6 Ed VII c. 51. Sch. II., s. M'Math v. Baird & Co., 1908, 
 
 9 (d). 25 S.C.R. 113. 
 
 Act of Sederunt, 26th June. 
 1907, s. 12. 
 
 888. The Sheriff-clerk has duties also in the case of an 
 appeal from the certifying surgeon to a medical referee, in the 
 case of industrial disease. If the district certifying surgeon, 
 appointed under the Factory and Workshop Act, 1901, certifies 
 that the workman is suffering from one of the scheduled 
 industrial diseases, the workman becomes entitled to compen- 
 sation in the same manner as if lie had, at the date of the 
 surgeon's certificate, been injured by the occurrence of an 
 accident. If either the employer or the workman is aggrieved 
 by the terms of the certifying surgeon's certificate, he may 
 appeal to a medical referee. The Sheriff-clerk, having satis- 
 fied himself thai the proceedings have been regular, selects 
 the proper referee, and lays the appeal before him. He also 
 makes an order upon the workman to submit himself to the 
 medical referee for examination. The decision of the medical 
 referee is returned by him to the Sheriff-clerk, who communi- 
 cates it to the parties. The Sheriff need nut necessarily be 
 called in at all, although it is, of course, competent tor the 
 Sheriff-clerk to refer to his decision any difficulty which 
 presents itself, and the Sheriff may have to intervene in special 
 circumstances, as. for instance, where the workman declines 
 to submit himself tor examination to the employer's doctor. 
 
 6 Ed. VII. c. 58, s. 8. Gardiner v. Brand & Son, 1910, 
 
 Statutory Rules, 25th June, 26 S.C.R. 23. 
 
 1907, s. 8, 20. 
 
 14. Fkai DTJLI \ l A.GREEM] \ 1 . 
 
 889. It an agreement is procured and recorded by fraud 
 
 — I % 
 
 or undue influence, the Sheriff may, within six months, order
 
 378 WORKMEN'S COMPENSATION ACT. 
 
 the memorandum to be removed from the register, upon i ho 
 ground thai il had been procured by fraud 'or undue influence, 
 and the Sheriff may make such order ns ho may think just, 
 "including an order as to any sum already paid under the 
 "agreement." As the Law permits no person to take benefit 
 by his fraud, the order," which is obviously contemplated 
 as being "just" in such circumstances, is a decree against 
 the party who has perpetrated the fraud, for repayment of 
 any money which he has obtained under the agreement. 
 6 Ed. YII. c. 58, Sch. II., s. 9 (e). 
 
 890. In neither of these two cases does either the statute 
 itself, or the Act of Sederunt, give any directions as to the 
 mode in which the matter of removing from the register a 
 memorandum obtained by fraud or undue influence is to be 
 referred to the Court. Where the objection to registration on 
 this ground is raised before the memorandum is recorded, 
 there is no need for any formal procedure. The Sheriff-clerk 
 will simply lay the memorandum, and the information he has 
 obtained regarding it, before the Sheriff. But it is not prob- 
 able that the Sheriff will, except in the very clearest case of 
 fraud, act merely upon this information. He will probably 
 appoint a diet and hear parties, and, if necessary, hear 
 evidence, before refusing to authorise the registration of the 
 memorandum. In the other case, however, of the question 
 being raised after the memorandum has been put on the 
 register, it would appear necessary for some person to crave 
 the Court to interfere, and the natural person to move in the 
 matter would be the party who has discovered the element of 
 fraud or undue influence. But there is no process before the 
 Court, in which a motion can be made. A craving to remove 
 the memorandum from the register would therefore be a new 
 civil proceeding in the Court, and would accordingly take the 
 form of an initial writ. 
 
 6 Ed. VII. c. 58, Sch. II., s. 9 {d), (c). 
 
 15. Review of Weekly Payment. 
 
 891. A weekly payment may be reviewed by the Sheriff, 
 at the request of either party, and may be increased or 
 diminished, or ended altogether. The statute does not limit 
 the grounds upon which review, with the aim of ending a.
 
 REVIEW OF WEEKLY PAYMENT. 379 
 
 weekly payment, is competent. Wha1 La contemplated by 
 the review clause is that the circumstances at the date o 
 review are to be reconsidered, and thai the Sheriff is to decide 
 whether the weekly payment is too much or too little, in the 
 altered circumstances, or whether these circumstances warrant 
 the ending of the compensation. 
 
 892. The review is not retrospective, and its object is not 
 to undo what has been done. The review provision relates 
 primarily to the amount of the weekly payment, not to legal 
 defect in the agreement under which it is being paid. But 
 there is no restriction as to the grounds upon which it may 
 be ended, and, accordingly, fraud or undue influence would 
 appear to be a good statutory ground upon which a weekly 
 payment may be ended, although not an element which enters 
 into the consideration of its being diminished or inci eased. 
 Probably also fraud would ground an action at common law, 
 to void the' agreement, or a suspension of a charge under it, 
 but a minute craving review to the effect of ending the weekly 
 payment is the simpler mode. 
 
 6 Ed. VII. c. 58, Sch. I., s. 16, Act of Sederunt, 26th June, 
 
 Sch. II., s. 9 (c). 1907, s. 9. 
 
 i893. An application for review of a weekly payment must 
 be disposed of, not hung up. At one time, a device for 
 keeping the question open, by reducing the payment to a 
 nominal sum, was recognised by the Courts, but that practice 
 is now discouraged. Possibly in Sheriff Court practice an 
 application might be sisted, and the compensation meantime 
 suspended, but this course has obvious inconveniences. Unless 
 the circumstances are exceptional, what the statute contem- 
 plates appears to be that the Sheriff should end the compensa- 
 tion, if the workman is proved to have recovered; or diminish 
 it if the altered circumstances seem to warrant that ; or that 
 he should refuse the application if there has been no change 
 of circumstances. 
 
 Rosie v. Mackay, 1910, S.C. 714. 
 
 16. Appeal. 
 
 894. An order by the Sheriff granting or refusing authority 
 to the Sheriff-clerk to register a memorandum of agreement
 
 380 WORKMEN'S COMPENSATION ACT. 
 
 is not an appealable judicial pronouncement, nor can it be 
 
 made the subject of an action of reduction. It is subject to 
 
 review only by wa} r of stated case. 
 
 Coakley v. Addie & Sons, Brown & Company, Limited r. 
 
 Limited, 1909, S.C. 545. Orr, 1910, S.C. 526. 
 
 895. There is no appeal, in cases under the Workmen's 
 
 Compensation Act, from the Sheriff-Substitute to the Sheriff, 
 
 and there is no appeal at all except upon a question of law. 
 
 The facts are commonly ascertained by proof, and the usual 
 
 order, upon presentation of an application, is to fix a diet for 
 
 the disposal of the cause. Proof, however, need not necessarily 
 
 be led at that diet, for the application may be so clearly 
 
 incompetent or irrelevant as to warrant the Sheriff disposing 
 
 of it upon the initial writ alone. If be does so, his decision 
 
 will be a determination of a question of law, and subject to 
 
 review ; for whether an application is competent, and whether 
 
 it is relevantly stated, or whether it is barred, are all questions 
 
 of law. 
 
 Rankine v. Alloa Coal Com- Coyne v. Glasgow Steam 
 
 canv 1903, 5 F. 1154. Coasters, Limited, 1907, S.C. 
 
 1 J ' 112. 
 
 896. Review of the decision of the Sheriff upon a question 
 of law is obtained by stating a case to a Division of the Court 
 of Session, from whom an appeal lies to the House of Lords. 
 The case is stated by the Sheriff and signed by him, but the 
 application for a stated case is made to the Sheriff-clerk by 
 the party desiring it lodging a minute "within seven days 
 " after the Sheriff has issued his award," that is to say, within 
 seven days after the interlocutor, containing the decision in 
 law complained of, has been entered in the Court register. The 
 Sheriff -clerk, upon receiving payment of the Court dues, then 
 prepares the draft case within seven days from the lodging 
 of the minute, and submits it in draft to the parties or their 
 agents. The questions of law for the appellate Court are in 
 the first instance stated as proposed in the intending appel- 
 lant's minute, but what are the appropriate questions of law 
 depends upon how the statement of facts is adjusted, and in 
 practice the questions of law are ultimately stated by the Sheriff, 
 upon the facts as adjusted and set forth in the stated case. 
 When the case lias been adjusted and signed, it is delivered to the 
 party who applied for it, whose duty it then becomes to send
 
 APPEAL. 381 
 
 (within seven days, or if in vacation, before the fiisi sederunt 
 day in session) a copy to other parties interested, and intimate 
 to them liis intention to proceed with it, and the Division to 
 which he proposes to submit it. It is his duty also to transmit 
 the case to the Clerk of the Division, along with a certificati 
 by himself or his law agent that notice has been given to other 
 interested parties. The process is not, transmitted, unless 
 ordered by the Appeal Court, upon the motion of either party. 
 
 6 Ed. VII. c. 58, Sch. II., s. Act of Sederunt, 7th March, 
 
 17 (6). 1908. 
 
 Act of Sederunt, 26th Juno, Act of Sederunt, 28th October, 
 
 1907, s. 17 (a), {b), (c), (d), 1909. 
 
 (e), if). 
 
 897. Neither the Court of Session nor the House of Lords 
 
 can decide any question which has not first been adjudicated 
 
 upon by the Sheriff. If, in order to give his decision, the 
 
 Sheriff has had to determine any question of law, he is bound 
 
 to state that question in the case. But he is not bound to 
 
 state any question of law which he did not determine, even 
 
 although the facts stated in the case might raise such a question 
 
 of law. The Sheriff is also entitled to refuse to state or sign 
 
 a case which he regards as frivolous, or which seeks to state 
 
 questions of law which in his opinion are not "raised upon the 
 
 facts admitted or proved. But, if the Sheriff refuse to sign a 
 
 case, he must grant a certificate setting forth his reason for 
 
 refusal and the nature of the cause, and then the applicant 
 
 may present a note in the Court of Session for an order upon 
 
 the other interested parties to show cause why a case should 
 
 not be stated, and any judge of a Division, or in vacation the 
 
 Lord Ordinary on the Bills, may summarily decide whether a 
 
 case should be stated, and, if so, may order the Sheriff to state 
 
 it. A certificate of refusal is not written upon the interlocutor 
 
 sheets, but upon a separate paper. 
 
 Act of Sederunt, 26th June, Caledon Shipbuilding Company 
 
 1907, s. 17 (c), (h). v. Kennedy, 1906, 8 P. 597. 
 
 Rae v. Frazer, 1899, 1 F. 1017. Paterson v. Beardmore, 1910, 
 
 S.C. 507. 
 
 17. Suspension. 
 
 898. Difference of opinion prevails as to the competency of 
 suspending, in the Sheriff Court, a charge upon an award 
 pronounced under the Workmen's Compensation Act, or upon 
 a recorded memorandum of agreement (which has all the force
 
 382 WORKMEN'S COMPENSATION ACT. 
 
 and effecl <if a Courl decree) whore the amount the debtor ia 
 charged to pay, exclusive of interest and expenses, does not 
 d £50. The jurisdiction of the Sheriff Court, under the 
 Sheriff Courts Acts, L907-1913, now extends to suspension of 
 charge, or threatened charge, upoD a decree of Court, including 
 a decree of registration. An award by the Sheriff, or a memo- 
 randum of agreement, so soon as it is registered, becomes in 
 its practical effect a decree of Court to the Bame intent as any 
 other decree for payment of money, and a charge is competent 
 upon it. 
 
 899. When the decree is for payment of a slump sum, as 
 fixed and ascertained compensation, no advantage can be 
 obtained by a process of suspension, except perhaps in an 
 occasional case, the correction of a clerical error in the decree, 
 as, for instance, where a payment to account, or other com- 
 petent deduction from the statutory amount of compensation, 
 had per incuriam not been made, and decree had been granted 
 for a larger sum than was truly exigible. But suspension 
 might serve a practical purpose in cases where the diligence 
 threatened proceeds upon a registered award, or registered 
 memorandum of agreement for a weekly payment, and where 
 the circumstances warrant the weekly payment being stopped, 
 as, for instance, where the workman has recovered and perhaps 
 is again at work earning full wages, although, owing to con- 
 gestion of the Court rolls, or other causes, an immediate review 
 ot the payment cannot be obtained in the manner provided by 
 the statute. The process directions of the statute and relative 
 Act of Sederunt are based upon the assumption that an 
 application for review under the statute will be immediately 
 dealt with, but in all Courts in time of vacation, and in 
 some of the busy Courts at all times, such applications cannot 
 get immediate attention, and it frequently happens that, under 
 i he compulsitor of diligence, a weekly payment is exacted long 
 liter it ought to have ceased. In such a case, suspension of a 
 charge in flic Sheriff Court would be an exceedingly convenient 
 process; but, unfortunately, it does not appear to be competent. 
 
 Appendix, s. 5 (5). Darngavil Coal Company v. 
 
 6 Ed. VII. c. 58, Sch. II., s. 9. Johnstone, 1909, 25 S.C.R. 
 
 7 Ed. VII. c. 51, s. 5 (5). 228. 
 
 Baird r. M'Whinnie, 1908, S.C. Wilsons & Clvde Compnnv. 
 
 440. Limited v. Cairnduff (1910), 
 
 Lochgellv Coal Company r. 1911, S.C. 647. 
 
 Sinclair, 1909, 1 S.L.T. 367.
 
 MAKITIME CASES. 383 
 
 18. Maritime Cases. 
 
 900. When the claim is for compensation in res] 
 injury sustained, or death occurring, a1 sea, and the injured 
 seaman had been discharged or left behind in a B 
 possession, or a foreign country, depositions taken bei ire a 
 
 judge or magistrate in a British possession or a British 
 consular officer in a foreign country, relating; to the circum- 
 stances of the accident, or the nature of the injury, may be 
 accepted as evidence in the Sheriff Courl where the claim is 
 laid, to the same effect as such depositions are accepted as 
 evidence in inquiry and other Courts under tlie Merchant 
 Shipping Acts. Such a claimant has thus an advantage over 
 any other claimant, who, if he requires evidence from a 
 distance or from abroad, must obtain it in the usual way by 
 commission. 
 
 57 & 58 Vict. c. 60, s. 691, 695. 6 Ed. VII. c. 58, s. 7 (c). 
 
 901. Certain other privileges also are accorded to claimants 
 in respect of maritime accidents. Thus, although the general 
 provision of the Workmen's Compensation Act is that a claim 
 is precluded unless it is made within six months, the time 
 within which dependants of seamen lost with a ship may make 
 a claim is extended to eighteen months from the date at which 
 the ship is deemed to have been lost. Such dependants also 
 may take the benefit of certain provisions of the Merchant 
 Shipping Act applicable to recovery of wages due to the lost 
 seaman, and they thus have the advantage over dependants 
 generally, in that they may not require to prove the exact date 
 of the accident, a ship being deemed to have been lost with all 
 hands if not heard of for twelve months after leaving a port. 
 Further, they may not require to prove that the seaman in 
 respect of whose death they claim was actually on board when 
 the ship was lost, because an official list of the crew as at her 
 last port of departure is declared to be, " in the absence of 
 " proof to the contrary, sufficient proof that the seamen and 
 " apprentices therein named as belonging to the ship were on 
 " board at the time of the loss." 
 
 57 & 58 Vict. c. 60, s. 174 (2), 6 Ed. VII. c. 58, s. 2 (1), 7 la). 
 
 (3).
 
 384 WORKMEN'S COMPENSATION ACT. 
 
 19. Award of Compensation in Ordinary Action. 
 
 002. The Workmen's Compensation Act introduced a 
 principle new to the process law of Scotland, namely, the 
 obtaining in a process of one kind a decree of a different kind 
 from that song-lit for in the action as laid. It frequently 
 happens that a case laid at common law, or under the 
 Employers' Liability Act, fails because the facts elicited at the 
 proof do not come up to the proof necessary to establish such a 
 claim, but that these facts do disclose a claim under the 
 Workmen's Compensation Act. In that event, the ordinary 
 course is not necessarily followed of dismissing the ordinary 
 action, leaving the pursuer to bring a new process under the 
 Workmen's Compensation Act. It is in the pursuer's option to 
 have the statutory compensation assessed in the original action, 
 albeit that action was not brought under the workmen's com- 
 pensation statute. But it is within the power of the Court to 
 deduct from the compensation the cost caused to the successful 
 party in the litigation, by the claim having been made by way 
 of an action of damages in the Ordinary Court, instead of by 
 way of an application under the Workmen's Compensation Act. 
 A compensation award made in this way does not take the 
 form of a decree in the original action. That action is dis- 
 missed, and the Court grants a separate certificate setting forth 
 the compensation awarded, and the direction of the Court as 
 to deduction for costs, and this certificate has " the force and 
 " effect of " a statutory award, that is to say, it is, like any 
 other award, subject to review by way of stated case, and, like 
 any other award, may be registered, and thereby become a 
 Court decree warranting diligence in common form. 
 
 6 Ed. YII. c. 58, s. 1 (4). 
 
 903. The Court which may grant such a certificate is "the 
 " Court in which the action is tried," but there is no time limit 
 for a pursuer making his election to drop his ordinary action, 
 and seek a compensation certificate. It appears to be 
 competent to move for such a certificate at any time before 
 final judgment in the original action. Accordingly, in the 
 case of an action which had been originated in the Sheriff 
 Court, the motion to assess compensation may be made in the 
 Appeal Court. But that Court cannot grant the certificate,
 
 COMPENSATION IX ORDINARY ACTION. 385 
 
 although it may entertain the motion to the effect of dismissing 
 the original action. As the Appeal Court is not the Court 
 in which the action had been tried, a remit will be made to 
 tin 1 Sheriff to assess compensation. 
 
 Little v. P. & W. M'Lellan, M'Vicar v. Robertson, 1910, B.C. 
 
 Limited, 1900, 2 F. 387. 396. 
 
 Quinn v. Brown & Company, 
 Limited. 1906, 8 F. 855. 
 
 20. Redemption of Weekly Payment. 
 
 904. It is competent for an employer, after a weekly 
 payment has been continued for not less than six months, to 
 redeem the payment by a slump sum, to be settled by the 
 Sheriil' if not agreed upon. If the redemption is not effected 
 by agreement, then the mode in which it may be effected is 
 for (he employer to present a minute to the Court, craving an 
 order fixing a redemption sum, upon which the Sheriff, after 
 a hearing-, and proof if necessary, fixes the sum. The 
 employer's liability for the weekly payment is not discharged 
 till the agreement, or the award, as the case may be, has 
 been registered. If the Sheriff is required to intervene, his 
 award, if it determines a question of law, is appealable by way 
 of stated case, like any other award. 
 
 6 Ed. VII. c. 58. Sch. I., s. 17. Act of Sederunt. 26th June, 
 
 Sch. II., s. 10. 1907, s. 9. 
 
 21. Expenses. 
 
 905. The matter of expenses in proceedings under the 
 Workmen's Compensation Act is entirely in the discretion of 
 the Sheriff, subject to modification or taxation in the usual 
 manner, and subject to the Sheriff Court rules regulating 
 expenses. Accordingly, expenses, if not modified at a fixed 
 amount, must be taxed by the Auditor as in any other process. 
 It is competent also for the Sheriff to grant decree for 
 expenses in name of the agent, but this will not be permitted 
 to defeat the express enactment that expenses incurred in an 
 abortive ordinary action are to form a deduction from 
 compensation which, in that process, may be awarded by 
 certificate under section 1 (4) of the statute. 
 
 Appendix, Rule 99. Lochgelly Iron Company v. 
 
 6 Ed. VII. c. 58, Sch. II., s. 7. Sinclair, 1907, S.C. 442. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 99. 
 
 25
 
 386 WORKMEN'S COMPENSATION ACT. 
 
 22. Apportionment of Award. 
 
 906. Not the Least difficult and responsible duty of the 
 Sheriff under the statute is that of the apportionment amongst 
 defendants of a slump sum awarded in ease of death. This 
 compensation is not paid by the employer to the applicants, 
 but is paid into Court, and is then directed to be "invested, 
 " applied, or otherwise dealt with by the Court in such manner 
 " as the Court, in its discretion, thinks tit for the benefit of the 
 "persons entitled thereto." The leading principle of the 
 statute is that the dependants shall (dl get the benefit of the 
 compensation, but the circumstances of dependants are so 
 varied, that an allocation to effect this object is always difficult, 
 and often delicate. The usual practice is for the agents of the 
 dependants, who have opportunity of ascertaining their exact 
 circumstances, to put in a minute craving allocation, and 
 suggesting a scheme. Upon this minute, and after such 
 inquiry as is possible, the Sheriff allocates the fund. If a 
 change of circumstances occurs, the Sheriff may vary the order. 
 Where children are being neglected, the Parish Council, or the 
 procurator-fiscal, may intervene to move the Sheriff to vary his 
 order. The disposal of the consigned fund is entirely in his 
 discretion, and there are cases in which it may be handed over 
 to the dependants, a course usually followed when there is 
 only one party interested, or when all parties interested are 
 major. The difficulty arises more particularly in the most 
 common case of a widow and minor children. The widow sues 
 for herself and the children, and obtains a lump sum award. 
 In some Courts it is understood to be the practice to make a 
 division upon the analogy of succession, and to authorise 
 payment to the widow of one-third, the balance being invested 
 or disbursed in instalments for behoof of the minor children. 
 But this rough-and-ready method is not always appropriate. 
 It may, for many reasons, be inadvisable to withdraw from 
 the control of the Court a third of the money, and the money 
 is not executry estate, for it never belonged to the deceased 
 workman, but belongs to the dependants themselves in their 
 own right. The common practice, and that by which most 
 probably the intention of the Act is best met, is to treat the 
 family as a whole, and regard the fund as a maintenance fund, 
 the Sheriff-clerk being authorised to pay to the widow, for 
 behoof of herself and family, a certain weekly or monthly
 
 APPORTIONMENT OF AWARD. 387 
 
 allowance, till the fund is exhausted. The widow is, in 
 addition, usually allowed a sum to meet funeral and other 
 expenses, the balance of the fund being- invested in name of the 
 Sheriff-clerk, and disbursed by him under warrant of the 
 Sheriff. 
 
 6 Ed. VII. c. 58, Sch. I., s. 5, Act of Sederunt, 26th June, 
 
 9, 13. 1907, s. 1.
 
 CHAPTEE XVII. 
 BANKRUPTCY. 
 
 1. JURISDICTION. 
 
 907. In Scotland the bankruptcy statutes are adminis- 
 tered by the Sheriff, who has important duties under them, 
 both ministerial and judicial. The principal statute is that of 
 1856, of which Lord President Inglis said, "The process of 
 " sequestration in this country is at once the most economical 
 " and the most expeditious system of bankruptcy procedure 
 "that has ever existed." But even this highly commended 
 statute is not without some elements of weakness, and a bill 
 is now before Parliament to consolidate and amend the whole 
 bankruptcy laws of Scotland. The present chapter deals with 
 the law as contained in the Acts 1856-1881, and relative 
 Acts of Sederunt. The jurisdiction of the Court of 
 Session is concurrent with that of the Sheriff Court, as regards 
 awarding sequestration, in the matter of a deed of arrangement, 
 as regards appeal against a creditor's resolution or a trustee's 
 deliverance, and as regards the discharge of the trustee and 
 bankrupt, but the practical conduct of a sequestration process 
 is always relegated to the Sheriff Court. The debtor must 
 be subject to the jurisdiction of the Supreme Courts of 
 Scotland, at the date of an application for sequestration of 
 his estates, or, if dead, he must have been so subject at the 
 date of his death. But if sequestration is awarded in the 
 Supreme Court, it is remitted to the appropriate Sheriff Court 
 to be worked out. 
 
 19 & 20 Vict. c. 79, s. 19, 35. Phosphate Sewage Company v. 
 
 Joel v. Gill, 1859, 21 D. 929, 22 Molleson, 1874, 1 R. 840. 
 
 D. 6. 
 
 908. An application in the Sheriff Court for sequestration 
 of a debtor's estates, whether made by the debtor himself or by 
 a creditor, is a civil proceeding in the Ordinary Sheriff Court, 
 and therefore an " action," and, accordingly, must be com-
 
 JURISDICTION. 
 
 menced by initial writ in the form of the Sheriff Courts Act, 
 1913. So also must all the applications to the Court at the 
 instance of creditors, or of the trustee in bankruptcy, or of 
 the bankrupt, which are made in virtue of powers under the 
 bankruptcy statutes. 
 
 Appendix, Rule I., Form A M'Dermott v. Ramsay, 1876, 4 
 
 7 K.I. YH. c. 51, s. 3 (d), Sch. R. 2i/. 
 
 I., Rule 1. 
 
 909. The Sheriff Court, in which an implication for 
 sequestration may be brought, is that in which the debtor for 
 a year prior to the application, or for a year prior to his death, 
 as the case may be, has resided or carried on business. But 
 sequestration will not knowingly be awarded in more than one 
 Sheriff Court. If, in ignorance that sequestration had already 
 been awarded, a second award is made, the later is remitted to 
 the former, on production of a certificate from the Clerk of the 
 Sheriff Court where sequestration was first awarded. When 
 the awards in different Courts bear the same date, either may 
 be appealed to the Supreme Court, and the Court, or the Lord 
 Ordinary on the Bills, " shall remit the sequestration to such 
 "Sheriff Court as in the whole circumstances they or he shall 
 " deem expedient." This also is the direction where the award 
 has been made by the Court of Session alone, so that (a) when 
 there is one application only to the Sheriff Court it is restricted 
 to the Sheriff Court of the bankrupt's residential or business 
 domicile; but (b) when there is one application to the Court 
 of Session alone, or where there are conflicting Sheriff Court 
 applications of the same date, or where there is a Court of 
 Session application and one or more in the Sheriff Courts, the 
 Court of Session may select any Sheriff Court in Scotland as 
 the convenient forum. Notice of remit to a Sheriff Court is 
 given in the Edinburgh Gazette. 
 
 19 & 20 Vict. c. 79, s. 18, 19. Cole, 1860, 22 D. 1031. 
 
 20 & 21 Vict. c. 19, s. 2, 3, 4. 
 
 'J. Application by Debtor. 
 
 910. An application by a debtor himself requires no service 
 or intimation. It requires only the concurrence of one creditor 
 whose debt amounts to at least £50, or two whose debts together 
 amount to at least £70, or three or more whose del 'is aggre-
 
 390 BANKRUPTCY. 
 
 gate at least £100. An affidavit and claim, and relative 
 vouchers, by tlio concurring creditor or creditors is produced 
 with the application, and if the application and the affidavit 
 are ex facie regular, sequestration is forthwith awarded. If 
 the application is not signed by the debtor, the law agent 
 signing it must produce a special mandate authorising the 
 application to be made. An interlocutor awarding sequestra- 
 tion is not appealable, the remedy being an application for 
 recall; but if the Sheriff should refuse to award sequestration, 
 which he is most unlikely to do, it appears to be competent to 
 appeal that judgment, although the more expeditious course 
 would probably be to make a fresh application in the Court of 
 Session. 
 
 19 & 20 Vict. c. 79, s. 19. Marr, 1880, 8 R. 784. 
 
 3. Application by Creditor. 
 
 911. An award of sequestration is not granted de piano if 
 the application is made by a creditor. Service is ordered upon 
 the debtor, who is required to show cause why sequestration 
 of his estates should not be awarded. If the debtor is within 
 Scotland, the inducia? is not less than six or more than fourteen 
 days. If the debtor is furth of Scotland, service is edictal 
 upon twenty-one days' induciae. If desired, the Sheriff, in 
 the first deliverance, also grants diligence to recover evidence 
 of the debtor's notour bankruptcy, or other facts necessary to 
 be established. 
 
 19 & 20 Vict. c. 26. 
 
 912. These facts are (a) that the debtor is notour bankrupt ; 
 lhat is to say, that he has been charged to make payment of 
 any debt (whether under or over £8 6s. 8d.), and the charge 
 has expired without payment having been made ; (b) that for the 
 year immediately preceding the presentation of the application 
 he has had a dwelling-place, or place of business in the 
 sheriffdom, or, if the debtor is a company, that the company 
 has for that time carried on business or had a place 
 of business, and a partner has resided or had a dwelling-house 
 in the sheriffdom. These facts being established at the diet 
 of compearance, sequestration is awarded, unless the debtor 
 appear and (a) show cause to the contrary, or (b) pay instantly
 
 APPLICATION BY CREDITOR. 391 
 
 the debts of the creditor making the application, and those of 
 any other creditors appearing and concurring. 
 
 19 & 20 Vict. c. 79, s. 13. 18. Black v. Humphrey, 1911, S.C. 
 
 30. p. 
 
 913. When service upon t he debtor is necessary, it may 
 competently be made within Scotland (a) personally; (b) at 
 his dwelling-place; (c) at his place of business; (d) at the 
 dwelling-house or place of business last occupied by him. If 
 he is furth of Scotland il is made at the office of edicta] 
 citations, and at the dwelling-house or place of business last 
 occupied by him. A witness is not required to an execution 
 of citation by an officer. Postal citation is not commonly 
 adopted, but the Citation Amendmenl Act of 1882 is expressed 
 in terms sufficiently wide to include the execution of warrants 
 of citation in bankruptcy proceedings, and, whilst citation by 
 officer is preferable, postal citation, although infrequent, is 
 not incompetent. A mere clerical error in the service will not 
 prevent an award of sequestration being made. 
 
 19 & 20 Vict. c. 79, s. 26. Lochrie v. M'Gregor (1910), 
 
 45 & 46 Vict. c. 77. 1911, S.C. 21. 
 
 914. An application by a creditor does not necessarily fall, 
 although the petitioning creditor may not desire to pursue it, 
 for, should lie withdraw, it is the right of any other creditor 
 to sist himself and pursue the process. Accordingly, a 
 bankruptcy process cannot be abandoned like an ordinary 
 action, although it may be dismissed if no one appear to 
 pursue it. A petitioning creditor desiring to withdraw cannot 
 stop the proceedings ; he can only withdraw himself as a 
 party. 
 
 915. The mode in which he may withdraw is by lodging 
 a minute of withdrawal, and moving the Court to dismiss the 
 process. But, if another creditor intervene, by lodging a 
 minute craving to be sisted, the Court has no discretion to 
 refuse to sist him. The intervening creditor will, of course, 
 produce with his minute an affidavit and claim, and, if this 
 is ex facie regular, it is sufficient title to intervene. An 
 original petitioning creditor must vouch a debt of at least 
 £50, but the debt of an intervening creditor need not neces- 
 sarily be of that amount. Once proceedings have been 
 initiated, by a petition being presented, and a first warrant
 
 392 BANKRUPTCY. 
 
 obtained, it is the right of any creditor to sist himself should 
 the original petitioning creditor withdraw. The statute makes 
 no time limit. A petitioning creditor may withdraw, and 
 another creditor may be sisted, at any time after the applica- 
 tion has been presented, and so long as it is a depending 
 process; but, in practice, if on the expiry of the inducise no 
 compearance is made, and no creditor intervene, the application 
 is dismissed. 
 
 19 & 20 Vict. c. 79, s. 34. Allan v. Thomson, 1840, 13 Jur. 
 
 619. 
 
 4. Recall. 
 
 916. From the date of the deliverance awarding seques- 
 tration, the process proceeds in the same order, whether the 
 application was at the instance of the debtor or that of a 
 creditor. The deliverance awarding sequestration is not an 
 appealable judgment, and, although the Sheriff has jurisdic- 
 tion to award sequestration, he can in no circumstances recall 
 it. That is competent only in the Court of Session. Within 
 forty days after the deliverance awarding sequestration, a 
 petition for recall may be presented to the Lord Ordinary on 
 the Bills, at the instance of the debtor (or, in certain circum- 
 stances, the representatives of a deceased debtor), or of ac- 
 creditor; but, after the lapse of the forty days, recall is com- 
 petent only if nine-tenths in number and value concur. The 
 sequestration proceedings, however, meantime go on, and, 
 although the sequestration should ultimately be recalled, 
 proceedings taken whilst it was in dependence are not inept. 
 
 19 & 20 Vict. c. 79, s. 31. 32, 
 33. 
 
 5. Creditors' Meeting. 
 
 917. In the deliverance awarding sequestration, the date 
 and place are fixed for the first meeting of creditors, to elect 
 a trustee and commissioners. A possible first duty of the 
 Sheriff is to preside at this meeting, in which event the Sheriff- 
 clerk also attends and writes the minutes. Neither the Sheriff 
 nor the Sheriff-clerk, however, attends the meeting, unless 
 required by two or more creditors to do so, and in practice the 
 Sheriff is seldom requisitioned. In his absence, the creditors 
 elect a preses, who reports the proceedings to the Sheriff.
 
 CREDITORS' MEETING. 
 
 The process then remains with the Sheriff-clerk, till a trustee 
 is finally appointed, alter which the process is delivered to the 
 trustee, who is thereafter responsible for it. 
 
 19 & 20 Vict. c. 79, s. 67. 68, 70. 
 
 6. Election of Trust i f. 
 
 918. Upon the proceedings being reported, the Sheriff, if 
 there is no competition for the office, gives effect to the minutes 
 of meeting, and declares the election of the trustee and Com- 
 missioners. Upon the trustee finding caution to the extent 
 fixed by the minute of the creditors' meeting, his election is 
 confirmed. His official title is an act and warrant, which, 
 being entered in the Register of Sequestrations, operates to 
 transfer to the trustee the whole estates of the bankrupt. A 
 copy of the act and warrant, certified by the Sheriff-clerk and 
 authenticated by a judge of the Court of Session, is received 
 as prima facie evidence of the trustee's title in any Court of 
 law in England or Ireland, or elsewhere in His Majesty's 
 dominions. 
 
 19 & 20 Vict. c. 79, s. 73. 
 
 919. If there is a competition for the office of trustee, the 
 
 final decision in the election rests with the Sheriff, and the 
 
 proceedings in the competition process are summary. The 
 
 rival candidates for the office, or creditors objecting, may, 
 
 within four days of the election meeting, lodge objections to 
 
 the votes recorded. These objections must be specific, and such 
 
 as can be disposed of upon the affidavits and vouchers, with 
 
 such instruction of each objection as is immediately available, 
 
 for proof at large is not allowed in a competition process. Nor 
 
 are there any written pleadings beyond the notes of objections. 
 
 The Sheriff states in writing his decision, and the grounds of 
 
 it, and this is put in process. The Sheriff's judgment declaring 
 
 the election of a trustee is not subject to review by appeal, 
 
 suspension, or otherwise, but, if he find that no election of 
 
 trustee has been made, that judgment is appealable, as are 
 
 also interlocutors in the competition process, other than that 
 
 declaring the election of a trustee. 
 
 19 & 20 Vict. c. 79, s. 70, 71. Wylie v. Kyd. 1884, 11 R. 820. 
 
 Miller r. Duncan, 1853, 20 D. Reid v. Strathie, 1887, 14 R. 847. 
 
 803. Moncur v. Macdonald, 1887. 14 
 
 Wiseman r. Skene, 1870, 8 M. R, 305. 
 
 661.
 
 394 BANKRUPTCY. 
 
 7. Removal of Trustee. 
 
 920. The creditors, by a bare majority in value, may elect 
 a trustee, and, when the Sheriff confirms the election, the title 
 of the trustee is absolute. To remove the trustee from office 
 requires a resolution (but not necessarily for reason assigned) 
 of a majority in number and value of the creditors present at 
 a meeting railed for the purpose. The trustee may also be 
 removed by the Lord Ordinary on the Bills, upon flu 1 applica- 
 tion of one-fourth of the creditors in value, or of the Accountant 
 of Court, but the Sheriff lias no jurisdiction to remove a trustee 
 once he has been confirmed. If the Lord Ordinary removes 
 him, he dues 7iot remit to the Sheriff, but himself appoints a 
 time and place for the creditors holding a meeting to elect 
 another trustee. Although direct application to the Sheriff 
 to remove a trustee is not competent, he may indirectly give 
 a decision upon this matter, for appeal to the Sheriff is com- 
 petent against a resolution of the creditors removing a trustee, 
 his decision being in turn subject to review by the Court of 
 Session. 
 
 19 & 20 Vict. c. 79, s. 74, 169, Walker v. Walker. 1835, 13 S. 
 
 170. 428. 
 
 Wallace v. Gibson. 1824. 3 S. 
 
 46. 
 
 921. The Sheriff has, however, a concurrent jurisdiction 
 with the Lord Ordinary to remove a trustee, in the single case 
 of the trustee keeping in his hands for more than ten days 
 funds exceeding £50 belonging to the estate. Any qualified 
 creditor may complain of this, either to the Lord Ordinary or 
 the Sheriff. If to the Sheriff, the complaint will take the form 
 of an initial writ, narrating the circumstances and craving the 
 Court to remove the trustee. The onus of proving that the 
 money was kept up from innocent causes rests upon the trustee. 
 If he fail to prove this, he is liable to be removed from his 
 office, and to forfeit his claim for remuneration during the time 
 he has been in office. 
 
 19 & 20 Vict. c. 79, s. 83. 
 
 922. The Sheriff also has jurisdiction in the event of the 
 trustee dying, or resigning, or remaining furth of Scot- 
 land for three months continuously, whilst the seques-
 
 REMOVAL OF TRUSTEE. 
 
 tratiou process is pending. In thai <;ise any of the 
 Commissioners, or any creditor, may apply to the Sheriff 
 to hold a meeting for devolving the office on the trustee next 
 in succession, nominated by the first meeting of creditor-, or 
 for electing: a new trustee. The statute does not direct the 
 mode in which such an application shall be made. It merely 
 gives general power to " npply to the Sheriff." In the absence 
 of special direction, the appropriate mode would seem to be a 
 summary application, in the form of an initial writ, narrating 
 the facts complained of, and craving the Sheriff to appoint a 
 meeting of creditors to be held. If the crave is granted, the 
 new meeting is advertised and held, and a new trustee elected 
 and confirmed, in the same manner as in the case of the original 
 trustee. 
 
 19 & 20 Vict. c. 79, s. 74. 
 
 923. The Sheriff has no powers in bankruptcy, other than 
 those conferred by statute. He cannot therefore order a 
 meeting to be held to elect a new trustee, in any circumstances 
 in which the statute does not sanction his interference. Thus, 
 where a trustee has been removed by the Lord Ordinary, upon 
 the report of the Accountant of Court, for failure properly to 
 perform his duties, or where, after a trustee has been 
 discharged, estate has emerged falling within the sequestration, 
 the Court of Session may ex nobili officio authorise the election 
 of a new trustee, and to this end may order a meeting to be 
 held ; but the Sheriff at his own hand cannot do this, although 
 in practice a remit is made to the Sheriff Court, in which event 
 the Sheriff directs the holding of a meeting of creditors, and 
 the subsequent procedure as in the original process ; or the 
 Court may authorise the Accountant of Court to convene a 
 meeting of creditors to elect a new trustee. 
 
 19 & 20 Vict. c. 79, s. 158, 159. Accountant in Bankruptcy v. 
 
 Lang v. Hally, 1870, 8 M. 753. Davie, 1884, 11 R. 1013. 
 
 Hutton, 1872, 10 M. 620. Young. 1888, 16 R, 92. 
 
 924. The bankrupt has no direct voice in the appointment 
 of a trustee or Commissioners, nor has he any statutory power 
 to apply for their removal. But it is competent for him to 
 submit to the Lord Ordinary, or the Court of Session, grounds 
 for the removal of the trustee, and ex nobili officio the Court 
 may, if the grounds are substantial, direct a meeting of
 
 396 BANKRUPTCY. 
 
 creditors to be held to consider these. But there the power 
 of the Court ends, for its nob He officium jurisdiction cannot be 
 exercised in matters in regard to which there is statutory 
 direction, and the removal of a trustee can be effected only 
 by resolution, or upon the application of the requisite majority 
 of creditors, or a single creditor if the trustee hold up funds. 
 
 19 & 20 Vict. c. 79, s. 74. Robertson v. Mitchell, 1871, 9 
 
 M. 741. 
 
 S. Commissioners. 
 
 925. The Sheriff has the duty of confirming the election of 
 the Commissioners, but, as in the case of the trustee, he has 
 no voice in their nomination. Their title is a minute, entered 
 in the sederunt book, and signed by the Sheriff, without any 
 more formal confirmation. They do not get an Act and warrant 
 from the Sheriff-clerk, and they do not require to find caution. 
 But, as " no person shall be eligible as a Commissioner who 
 " is disqualified to be a trustee," it is within the scope of the 
 Sheriff's authority to refuse to confirm the appointment as 
 Commissioner of any person obviously disqualified, or whose 
 disqualification can be instantly verified by an objector. The 
 Sheriff has no statutory powers as regards the removal of 
 Commissioners, nor does the statute expressly authorise the 
 creditors to apply to the Court of Session for their removal, 
 but a Commissioner may be removed by the Court of Session, 
 upon the Accountant of Court's report that he is not performing 
 his duty. 
 
 19 & 20 Vict. c. 79, s. 75. 
 
 9. Interim Preservation oe Estate. 
 
 926. When an application for sequestration is presented in 
 the Sheriff Court, the Sheriff has sole jurisdiction in matters 
 relating to the interim preservation of a bankrupt's estate. 
 Thus, upon the application of a creditor, or, ex proprio motu, 
 the Sheriff may appoint a judicial factor, whether or not seques- 
 tration can be immediately awarded. There may be a craving 
 for this in a creditor's writ for sequestration, or it may be a 
 separate application. If separate, it is a summary application 
 in the form of an initial writ. Such an application does not in 
 general require to be served or intimated, although there may
 
 INTERIM PRESERVATION OF ESTATE. 397 
 
 be special circumstances in which it may ho reasonable that a 
 party in possession of estate should be heard. If the Sheriff is 
 satisfied that it is desirable for the preservation of the estate, 
 the appoint men! may be made de piano, and is in practice so 
 made. But this is one of the matters upon which the statute 
 allows an appeal to Ihe Court of Session. A note of appeal 
 must be lodged with the Sheriff-clerk within eight days. The 
 appeal is disposed of by the Inner House in session, and by the 
 Lord Ordinary on the Bills in vacation. Either may remit to 
 the Sheriff with instructions; but, if the appeal is disposed of 
 by the Lord Ordinary, his judgment is subject to review by 
 the Inner House. Once appointed, a judicial factor holds 
 office till his appointment is recalled, or the sequestration is 
 recalled, or the application is dismissed, or the judicial factor 
 is superseded by a duly confirmed trustee. 
 
 19 & 20 Vict. c. 79, s. 16, 170. M'Creadies v. Douglas, 1882, 10 
 
 Partridge v. Baillie, 1873, 1 R. R. 108. 
 
 253. Cuthbertson v. Gibson, 1887, 14 
 
 R. 736. 
 
 927. Formerly the creditors had, beyond the appointment 
 of a judicial factor, no practical means of recovering estate 
 pending the appointment of a trustee, and, although the 
 judicial factor might discover it, he had no compulsitor upon 
 the bankrupt to recover such estate. The Sheriff's power only 
 extended to putting under safe custody the bankrupt's books 
 and papers, and locking up his business premises. But 
 under the Debtors Act, 1880, the Sheriff, either ex 
 froyrio motu or upon the application of any creditor, 
 may grant a warrant to search the dwelling-house and 
 business premises and the person of the debtor, to open 
 shut and lockfast places, and to take forcible possession of any 
 moveable property " belonging to or in the possession of the 
 "debtor." An application by a creditor for a search warrant 
 is a summary application, which requires no service or intima- 
 tion, and which, indeed, if not granted de piano, would 
 generally be defeated. If the exact nature of, and the locality 
 of, the property desired to be recovered, or expected to be 
 disclosed on a search, is known, it should be narrated in the 
 initial writ; but it is competent for the Sheriff, upon a general 
 averment that estate is believed to exist, and to be in danger 
 of being lost if not immediately secured, to grant a general 
 search warrant. In an application for cessio at the instance
 
 398 BANKEUPTCY. 
 
 of a creditor, a crave for a search warrant is commonly included 
 in the initial writ. The Sheriff bas also a general power to 
 regulate interim possession and administration of the bank- 
 rupt estate, during the dependence of an appeal. 
 
 19 & 20 Vict. c. 71, s. 20, 172. 44 & 45 Vict. c. 22, s. 13. 
 
 43 & 44 Vict. c. 34, s. 12. 
 
 10. Bankruptcy Examination. 
 
 928. One of the important duties of the Sheriff in bank- 
 ruptcy is the conduct of the public examination of the 
 bankrupt, and of third parties who may be able to throw any 
 light upon the bankrupt's affairs, or the nature of the estate, 
 or how it can be made available to the creditors. It is the duty 
 of the trustee, within eight days of the date of his act and 
 warrant, to apply to the Sheriff to name a day for the public 
 examination of the bankrupt. This takes the form of an 
 initial writ, narrating his appointment as trustee, and craving 
 an examination diet. This application is granted de piano, 
 and then served upon the bankrupt, who is ordained to attend 
 for examination. The date fixed must be not sooner than seven, 
 or later than fourteen, days from the date of the warrant, and 
 the date fixed must be intimated by Gazette notice and circular 
 to the creditors. 
 
 19 & 20 Vict. c. 79, s. 87. 
 
 929. The examination of the bankrupt is generally con- 
 ducted in public, but its object is not, as is sometimes supposed, 
 to make an exhibition of the bankrupt, but only to elicit, for 
 the information of the trustee, facts tending to show where 
 there is any estate which the trustee may take, and realise for 
 the benefit of the creditors. The object of the examination 
 may sometimes be defeated, rather than promoted, by the 
 examination being conducted in public. The statute, accord- 
 ingly, invests the trustee with a discretion to take it in private. 
 If the trustee moves that the examination be conducted in 
 private, the Sheriff has no discretion, but must so order, for 
 the trustee is, under the statute, the sole judge, and is indeed, 
 at that stage of the process, the only person who has any 
 knowledge, to enable him to judge, whether a public or a
 
 BANKRUPTCY EXAMINATK >N. 
 
 private examination of the bankrupl is most in the Lnter< 
 the creditors. 
 
 19 & 20 Vict. c. 79. s. 88, 92. Guild v. Wright, 1878. 6 R. 289. 
 
 930. When the bankrupt is abroad, or is prevented from 
 attending by a "lawful cause," thai lb to 3ay, by some cause 
 which, in the opinion of the Sheriff, ibly excuses him, 
 the SherilV may granl commission to take the examination of 
 the bankrupt. But when there is no good reason for absenting 
 himself, the bankrupt must attend personally, and, if he fail 
 to do so, the Sheriff may grant a warrant for his apprehension, 
 which may be executed by a messenger or Sheriff-officer 
 anywhere within Scotland. If he is furth of Scotland, but 
 within the United Kingdom, a warrant may be obtained from 
 the Lord Ordinary on the Bills to apprehend him and bring 
 him to the place fixed for his examination. 
 
 19 & 20 Vict. c. 79, s. 88, 89. 
 
 931. It is competent also for the Sheriff, on the application 
 of the trustee, to order the examination of " the bankrupt's 
 '" wife and family, clerks, servants, factors, law agents, and 
 " others who can give information relative to his estate," a 
 range of inquiry wide enough to include all who can in any 
 way shed any light upon the bankrupt's affairs. If such 
 parties are desired to produce documents, the crave should 
 include that they be ordered to exhibit or produce named or 
 described documents. But creditors may not be examined 
 upon their own claims ; and the trustee is not entitled to use 
 his power of examining third parties, merely to precognosce 
 a party with whom he is in litigation. A creditor, or a 
 litigant, however, may be able to aid the object of the 
 examination, which, both as regards the bankrupt and third 
 parties, is "to ascertain what the bankrupt's estate consists 
 "of, where it is, and what he has done with it, or to affect 
 "it." If he can aid this inquiry, no person is entitled to 
 withhold his information, merely because he is an actual or 
 possible creditor, or litigant. On the other hand, it is not the 
 purpose of such examination to settle the validity of creditors' 
 claims, or the soundness of litigants 5 pleas. The keeping of 
 the examination within due bounds is often difficult, and
 
 400 BANKRUPTCY. 
 
 sometimes delicate. A bankruptcy examination is not in the 
 strict sense of the term a proof. It is rather of the nature of 
 an inquiry, where the strict rules of evidence are not so strictly 
 regarded as in a proof. The Sheriff is the sole and final judge 
 of what is relevant and reasonable inquiry. If the trustee 
 60 elect, the examination of third parties may also be taken 
 in private. 
 
 19 & 20 Vict. c. 79, s. 90, 92. Brash v. Hoey, 1888, 15 R. 583. 
 
 3a <rers r. Balgarnie, 1858, 21 D. M'Culloch v. Jack's Trustees, 
 
 153. 1910, S.C. 34. 
 
 Delvoitte v. Baillie's Trustee. 
 
 1877. 5 R, 143. 
 
 932. Failing the attendance of third parties at the diet 
 fixed for their examination, a warrant for their apprehension 
 may be issued, and may be executed within Scotland, in like 
 manner as a warrant for the apprehension of the bankrupt; 
 but when the third party is not the wife, or member of the 
 family, or servant of the bankrupt, a warrant for apprehension 
 will not be granted unless eight days at least have elapsed from 
 the service of the warrant, or the trustee make oath of his 
 reasonable belief that the witness intends to leave the country 
 to avoid being examined. The provision for bringing the 
 bankrupt from England or Ireland does not extend to third 
 party witnesses, and there is no provision for procuring their 
 evidence, if they are furth of Scotland, beyond the general 
 power to take their evidence on commission, and a general 
 provision of the English Bankruptcy Act of 1883, that Courts 
 having bankruptcy jurisdiction in the three kingdoms are to 
 enforce each other's orders, in the same manner as if the 
 order had been made in their own Courts. Accordingly, the 
 Slier iff, in making an order for the examination of either 
 the bankrupt or third parties furth of Scotland, may embody 
 in it a request to the County Court of the English or Irish 
 present domicile of the witness, to give effect to the order, 
 and that Court will compel the witness to attend before the 
 County Court for examination there by the bankruptcy 
 trustee. 
 
 19 & 20 Vict. c. 79, s. 90. Park v. Robson, 1871, 10 M. 10 
 
 46 & 47 Vict. c. 52. s. 117, 118. 
 
 933. The ordinary rules of procedure in recording evidence, 
 which are in operation in the Sheriff Court, apply to depositions
 
 BANKRUPTCY EXAMINATION. 401 
 
 in bankruptcy by the bankrupt and third parties. The 
 deponent must be sworn, or make an affirmation, in the same 
 manner as a witness in a litigation. The record of whal the 
 witness says is a " deposition "within the meaning of procedure 
 Rule 65 of the Sheriff Courts Act, L907. Accordingly, the 
 deposition may be taken down by a shorthand writer, under 
 the supervision of the Sheriff or Commissioner, but not neces- 
 sarily to his dictation, and the shorthand writer's notes of 
 evidence, certified by liim, form the official record of the 
 exaininal inn. The record of tlie evidence of third parties does 
 not now necessarily require to be signed by the witnesses or by 
 the Sheriff, although it may sometimes be desirable to have it 
 signed. It is in general practice written into the sederunt 
 book, although it may suffice thai it is certified by the short- 
 hand writer, and put in process as a separate paper. The 
 deposition of the bankrupt, however, is in practice written in 
 the sederunt book, and is signed by the bankrupt and the 
 Sheriff, because (a) refusal to sign his examination is still a 
 ground for imprisoning the bankrupt; (b) the direction of 
 the Bankruptcy Act still stands, that the deposition of the 
 bankrupt is to be " authenticated in the ordinary way as a 
 " regular deposition " ; and (c) it is still necessary that the 
 " statutory oath," which closes the examination of the 
 bankrupt, must be engrossed and signed in the sederunt book, 
 and it is obviously convenient to have the entire examination 
 there recorded. The depositions of third parties were never 
 directed to be authenticated or to be engrossed in the sederunt 
 book. These now fall within the directions of the Sheriff Court 
 Acts as to recording the evidence in proofs in civil cases, 
 since the introduction in 1874 of the practice of recording 
 evidence by a sworn shorthand writer, the practice of a witness 
 examined in any process signing the record of his evidence has 
 disappeared, and so the deposition of a third party witness in 
 bankruptcy is not in practice now signed, either by the witness, 
 or by the Sheriff. 
 
 Appendix, Rule 65. 37 & 38 Vict. c. 64, s. 4. 
 
 16 & 17 Vict. c. 80, s. 10. 7 Ed. VII. c. 51. Sch. I.. Rule 
 
 19 & 20 Vict. c. 79, s. 92, 93, 65. 
 
 95. 
 
 934. The regulation of the proceedings at a diet for the 
 examination of the bankrupt, or of third parties, is entirely 
 in the hands of the Sheriff. The primary purpose — indeed, 
 26
 
 402 BANKRUPTCY. 
 
 the only authorised purpose — of the examination is to enable 
 the trustee to get information, in the interest of the 
 creditors, and beyond I his purpose the examination should not 
 be allowed to go. The examination may be adjourned from 
 time to time, on the motion of the trustee. No person, other 
 than the trustee or the Law agenl in the sequestration, is 
 entitled to question the deponents, until after the trustee has 
 closed his examination. Whether any other person shall then 
 do so, is a matter entirely in the discretion of the Sheriff. 
 Creditors are not, as matter of right, entitled to put questions. 
 They are represented by the trustee, and, if they possess 
 information upon matters regarding which examination on 
 oath of the bankrupt or third parties may be useful, their 
 strictly proper course is to inform the trustee, so that he may 
 include such matters in his examination, lint, by leave of 
 the Court, creditors may put questions, and in practice the 
 rule of procedure has come to be that, after the trustee has 
 closed his examination, any creditor, or his mandatory, or 
 his law agent, is permitted to put supplementary questions, 
 but not to conduct a new examination on his own account. 
 
 19 & 20 Vict. c. 79, s 87, 94. Clark v. Cuthbertson, 1848. 10 
 
 Smith v. M'Clelland, 1843, 6 D. D. 1471. 
 
 331. 
 
 935. Although it is the statutory duty of the trustee to 
 obtain a diet fixed for the public examination of the bankrupt, 
 and to intimate it to the creditors, it does not necessarily follow 
 that an examination takes place. If the trustee obtains full 
 information privately from the bankrupt or others, there is 
 no object to be served by the formal examination of either the 
 bankrupt or third parties, and it may even be to the prejudice 
 of the estate that a public examination should proceed ; but 
 the fact that the trustee is satisfied is recorded in the sederunt 
 book, and the statutory oath is administered. Accordingly, 
 it frequently occurs that, at the examination diet, the trustee 
 informs the Court that he is satisfied with the explanations he 
 has obtained, and that he has no questions to ask. In that 
 event no examination takes place. If the bankrupt is sworn, 
 and is asked by the trustee any question, however formal, 
 even, for instance, his age or his present address, and the 
 trustee then states that he has no further questions to ask, an 
 examination by the trustee has, in the sense of the statute, 
 been made and closed, and a creditor may then, with the leave
 
 BANKRUPTCY EXAMINATION. 40:] 
 
 of the Court, proceed to put questions. I'.ui it, at the fixed 
 diet, the trustee elects not to proceed at all with the examina- 
 tion, then the Court has no discretion to allow creditors to 
 intervene. Creditors cannot insist upon Caking this matter 
 out of the trustee's hands, and the Court cannol empower 
 them to do so. If, in the exercise of his discretion, the trustee 
 elects not to examine, that ends the proceedings. The diet 
 had been fixed for the single purpose of enabling the trustee 
 
 to question the bankrupt uj oath, and if the trustee elects 
 
 not to do so, neither the Court, nor any creditor present, can 
 interfere with the trustee's discretion. If creditors are 
 dissatisfied, they have their general remedy of reporting to 
 the Accountant of Court what they may regard as the trustee's 
 dereliction of duty, and the Accountant might direct a 
 meeting of creditors to he held, if he were of opinion that 
 proceeding with the examination was "requisite for the 
 " preservation of due management of the estate, or more speedy 
 " realising and division of the funds or winding up of the 
 '"estate"; or the Accountant might report the matter to the 
 Court of Session or the Lord Ordinary on the Bills for 
 direction. But neither the Accountant nor the Court is at all 
 likely, unless in most exceptional circumstances, to interfere 
 with the trustee's discretion in a matter of this sort. As 
 regards examining the bankrupt (but not third parties), there 
 is another possible remedy open to dissatisfied creditors if they 
 constitute a sufficient majority. They may treat the first 
 examination as closed, and proceed to procure a new diet. 
 The Sheriff may, upon the " application of the trustee, order 
 "the bankrupt to be examined as often as he shall see fit." 
 The trustee is bound to call a meeting of creditors upon the 
 requisition of one-fourth in value of the creditors entitled 
 to vote. A meeting of creditors is entitled to give directions 
 to the trustee. In this indirect way, the requisite majority 
 of creditors might possibly compel the examination of the 
 bankrupt. But, whatever remedy creditors may afterwards 
 have, they are not entitled at the official examination diet to 
 examine the hank rupt whom the trustee has elected not to 
 examine. 
 
 19 & 20 Vict. c. 79, s. 88, 98, Robertson v. Mitchell, 1871, 9 
 
 160, 161. .M. 741. 
 
 Sonierville v. Darlington, 1859, Delvoitte r. Baillie'a Trustee, 
 
 21 D. 467. 1877, 5 R. 143. 
 
 936. The statute recognises the rielrl of creditors, by leave
 
 404 BANKRUPTCY. 
 
 of the Court, to supplement the trustee's examination, bui no 
 person other than a creditor, or creditor's law agent, even 
 by leave of the Court, is cut ii Led to take part in the examina- 
 tion proceedings. Sometimes, at a bankruptcy examination, 
 or an examination of third parties, hard things, and, it may 
 be, untrue, or at least unjust, things, are said about parties 
 who are not creditors. But such parties have no right to 
 cross-examine, and they have no locus standi at the examina- 
 tion diet. A bankrupt or third party is only bound ''to 
 " answer to the satisfaction of t lie Sheriff any lawful question 
 " put to him by the Sheriff or trustee, or by any creditor with 
 "the sanction of the Sheriff." 
 19 & 20 Vict. c. 79, s. 93. 
 
 937. Parties who are entitled to take part in the proceed- 
 ings may, of course, act through their law agents, but the 
 statute takes no cognisance of one law agent whose presence 
 is most common, and often most helpful, at an examination 
 diet, viz., the law agent for the bankrupt. The statute does 
 not recognise his light to examine, or cross-examine, either 
 his own client or third parties, but indirectly he is, in practice, 
 permitted to assist in elucidating facts. Alter a bankrupt 
 has answered questions put to him by the trustee, or the 
 Court, or a creditor with the leave of the Court, there is no 
 doubt that he is entitled, as any witness is, to volunteer an 
 explanation of some matter which he conceives the questioner 
 has failed to make clear. 
 
 938. It frequently happens that some explanation is neces- 
 sary, for the examining trustee, or the examining creditor, may 
 be very imperfectly informed, whilst the bankrupt or his law 
 agent is fully informed, upon a particular matter. It 
 frequently happens, also, that half a dozen short questions, 
 put to the bankrupt by his own agent, will elicit the necessary 
 explanation in half the time, and much more clearly, than 
 the witness could himself express it in a voluntary statement. 
 Where a bankrupt or third party is honestly desirous of giving 
 information, the Court will not, as a rule, decline to permit 
 the bankrupt's law agent to put a supplementary question to 
 him. But, as the statute does not recognise the bankrupt's 
 law agent, such questions should, in the official record, 
 nominally be put as by the trustee or by the Court. At an
 
 BANKRU PTCY EX A MINATIO N . 405 
 
 examination of third parties, it is often particularly bard thai 
 the bankrupl should bave no locus standi to check possible 
 misrepresentation of facts, and in this case a well-informed 
 bankrupt's Law agenl can peculiarly assisl at whal is generally 
 more or less a fishing inquiry, conducted withoul previous 
 precognition of witnesses. Bu1 whatever assistance be can 
 give must, as in the case of the bankrupt, take the unofficial 
 form of suggestion of questions to be formally put either by 
 the trustee or by the Court. 
 19 & 20 Vict, c. 79, s. 93. 
 
 939. In general, no person present at the examination may 
 challenge the competency of questions put by the trustee to 
 the bankrupt or to a third party, nor will the Court readily 
 interfere to direct or to control the trustee's line of examina- 
 tion. It is the trustee's examination, and he has a wide 
 discretion to ask, or refrain from asking-, particlar questions. 
 But the statute authorises only "lawful questions relating to 
 " the affairs of the bankrupt," and a qualified creditor present 
 at the examination of the bankrupt, or of third parties, or the 
 bankrupt or a third party himself, may be entitled to chal- 
 lenge, and the Court may be required to decide, the competency 
 of questions which are challenged as not lawful, as, for 
 instance, tending to incriminate the deponent, or which 
 obviously do not relate to the affairs of the bankrupt, or are 
 beyond the scope of the examination. In like manner the 
 competency of creditors' questions may be challenged by the 
 trustee, and in this matter the Court will more readily inter- 
 fere, for the scope of the examination is largely determined 
 by the trustee's line of examination, and the creditors are not 
 there to conduct, but only to supplement, the examination, 
 and the leave of the Court is required to a creditor's supple- 
 ment. If a creditor's question is otherwise competent, the 
 trustee cannot object to it, merely because the answer may 
 possibly be injurious to the general body of creditors. 
 
 19 & 20 Vict. c. 79, s. 91. Wright v. Wink. 1852, 24 Jur. 
 
 Barstow r. Hutcheson, 1849, 11 230. 
 
 D. 687. 
 
 940. Review of the Sheriff's judgment upon the competency 
 of questions arising at the examination is not expressly pro- 
 vided for. 13ut if the Sheriff makes an express order upon a 
 party to answer a particular question, or produce particular
 
 406 BANKRUPTCY. 
 
 documents, non-compliance with that order may be followed 
 by a warrant to commii the party to prison till lie comply 
 with the order. Such a warrant is declared to be not subject 
 to review of the Court of Session, but under a similar clause in 
 the prior bankruptcy statute an appeal was entertained against 
 the order itself (not against the warrant to imprison), and 
 appeal would appear to be still competent against a specific 
 deliverance of the Sheriff ordering, or refusing to order, a 
 party to submit to examination, or directing a particular 
 question to be answered, or allowing it to remain unanswered. 
 Appeal, however, is competent only against a specific 
 " deliverance " of the Sheriff, so that an order upon a deponent 
 would require to be precise, before it could be subject to review. 
 
 19 & 20 Vict. c. 79, s. 91. 93. Pollock v. King, 1844, 7 D. 172. 
 
 170. Paul v. Robb, 1855, 17 D. 457. 
 
 941. Very drastic powers are committed to the Sheriff for 
 enforcing the giving of evidence, and production of documents, 
 by the bankrupt and third parties. If the bankrupt refuse to 
 sign his examination, or if either the bankrupt or a third party 
 (a) refuse to be sworn or make an affirmation, (b) refuse to 
 answer lawful questions, (c) refuse to produce books or 
 documents within his control, the Sheriff may commit him 
 to prison. But the object of this imprisonment is not punish- 
 ment, but enforcement of compliance with an order. Im- 
 prisonment ceases, therefore, so soon as compliance has been 
 made. Before imprisonment can follow, there must have 
 been a specific order, the terms of which, as well as the 
 non-compliance with which, must be narrated in the warrant 
 to imprison. In such a matter as, for instance, the bankrupt 
 contemning the Court by refusing to sign his examination, it is 
 competent for the Sheriff there and then to commit him to 
 prison, for it is the bankrupt's statutory duty to sign the 
 examination, and there is no appeal upon the question whether 
 he is bound to do so. But when the cause of complaint 
 is I lie non-answering of questions, or the non-production of 
 documents, upon which there may be room for argument, 
 what the statute seems to contemplate is that the Sheriff 
 should first pronounce a formal deliverance ordering the 
 bankrupt or third party to answer or produce, upon which 
 order not being implemented, a warrant to imprison may be
 
 BANKRUPTCY EXAMINATION. 107 
 
 granted, if meantime the order itself has not been appealed 
 against. 
 
 19 & 20 Vict, c. 79, b. 93. 
 
 942. The statute does not direct in what manner this 
 imprisonment power is to be put into operation ; but the natural 
 person to move in the matter, and to lay before the Court 
 grounds for granting a warrant to imprison is, of course, the 
 trustee ; but if a creditor is the interested party, as, for instance, 
 where the witness had refused to answer a creditor's question 
 allowed by the Sheriff, the creditor may be entitled to move. 
 What the statute contemplates appears to be that some respon- 
 sible interested party shall set the machinery in motion, by 
 making to the Court a formal application for a warrant, after 
 the party has had an opportunity of complying with the 
 Sheriff's order, and lias failed to do so. 
 19 & 20 Vict. c. 79, s. 93. 
 
 94-S. This view is supported by the fact that the bankrupt 
 
 or third party may apply for recall of the warrant to the 
 
 Lord Ordinary on the Bills, by petition of which service is 
 
 ordered, and upon which parties are heard. The statute does 
 
 not expressly say that the decision of the Lord Ordinary is 
 
 final, but, as there is no formal record, the inference is that 
 
 there is no review. Upon a petition for recall of a warrant of 
 
 imprisonment, the Lord Ordinary is directed to hear parties 
 
 orally. 
 
 19 & 20 Vict. c. 79, s. 93. Nicol v. Edmond, 1851, 13 D. 
 
 614. 
 
 11. Ami i mm k vi ive Advice. 
 
 944. The Sheriff may occasionally be appealed to when a 
 difference of opinion arises as to the management and disposal 
 of the estate. The creditors may give the trustee specific direc- 
 tions. In practice, this matter is left to the trustee, under 
 the advice of the Commissioners. But, at the second statutory 
 meeting held after the bankrupt's examination, when the 
 trustee submits a report upon the estate, the creditors may 
 give directions to the trustee, and there may be room for 
 ditference of opinion upon policy, as, for instance, as to 
 carrying on a business for a time, or as to the adoption of
 
 408 BANKRUPTCY. 
 
 current contracts, or the like. A resolution of the creditors 
 
 is appealable to the Sheriff within fourteen days. The parties 
 
 having an interest to appeal appear to be (a) the minority 
 
 creditors; (b) any other creditor, whether he was present at 
 
 the meeting or not; (c) the bankrupt, upon whose possible 
 
 reversionary interest the policy of the resolution may have 
 
 an important bearing; (d) the trustee, who may have an 
 
 interest as representing absent creditors, or a personal interest 
 
 if the resolution has given directions contrary to the bankruptcy 
 
 statutes, or has directed a speculative policy, in the following 
 
 out of which the trustee might incur personal liability. An 
 
 appeal to the Sheriff against a resolution of the creditors must 
 
 be made within fourteen days, and takes the form of a note of 
 
 appeal, which should narrate the terms of the resolution, the 
 
 date of its being adopted, and the majority in its favour. It is 
 
 in the option of the Sheriff to make up a formal record, but he 
 
 disposes of the appeal in a summary way, giving reasons with 
 
 his judgment. If the matter is of any importance, it may be 
 
 desirable to order minutes, and make up a record, for 
 
 the Sheriff's judgment may be appealed to the Court of Session. 
 
 In place of deciding the question, the Sheriff may, in the 
 
 first place, order a new meeting of creditors to be held, to 
 
 reconsider the resolution complained against. 
 
 19 & 20 Vict. c. 79, s. 82, 96, Witham v. Teenan's Trustee, 
 
 169, 170 1884, 11 R. 776. 
 
 Burt v. Bell, 1863, 1 M. 382. 
 
 12. Deed of Arrangement. 
 
 945. Another important duty of the Sheriff under the 
 bankruptcy statutes is to decide upon the reasonableness of a 
 deed of arrangement, and, if satisfied with it, to end the 
 sequestration. At the first meeting, or at a subsequent meeting 
 called for the purpose, a majority in number and four-fifths 
 in value of the creditors present or represented may resolve 
 that the estate be wound up by deed of arrangement. If it is 
 so resolved at the first meeting, a trustee need not necessarily 
 be elected, but it may be desirable, although it is not 
 essential, to appoint a judicial factor. If the resolution is 
 adopted after a trustee has been elected, his duties as 
 trustee are suspended, and his functions become rather 
 those of a judicial factor, to preserve the estate, and, if there 
 is a going business, to carry it on, or to supervise the bankrupt
 
 DEED OF ARRANGEMENT. 1,09 
 
 carrying' it on. Where ;i trustee is in office a1 the date of the 
 sist, it is not competent to appoint a judicial factor. 
 
 19 & 20 Vict. c. 79, s. 35, 40. Brown r. Bayley'a Trustees 
 
 (1909), 1910, S.C. 76. 
 
 946. Within four days of the meeting at which such a 
 resolution is passed, the bankrupt, or a person appointed for 
 the purpose by the meeting, reports the resolution to the 
 Sheriff, and moves that the sequestration process be sisted for 
 a period not exceeding two months, upon which the Sheriff 
 may hear "any party having an interest," which at that stage 
 would appear to include (a) the bankrupt; (b) creditors; (c) 
 persons holding or managing any part of the estate; or (d) any 
 person who can qualify an interest which might be prejudiced 
 by the sequestration process being sisted. But as the resolution 
 has at this stage gone no further than that a deed of arrange- 
 ment be the mode of working out the sequestration, and its 
 terms are not yet before the Sheriff, his duty is in practice 
 restricted to satisfying himself of the regularity of the 
 proceedings at the meeting, that the resolution was carried by 
 the requisite majority, and that it has been reported to him 
 within four days. If he is satisfied of these technical details. 
 the process is sisted. 
 
 19 & 20 Vict. c. 79, s. 36. Dixon v. Greenock Distillery 
 
 Company, 1867, 5 M. 1033. 
 
 947. Beyond his general bankruptcy duty of preserving the 
 estate, or regulating its management, which in practice means 
 appointing a judicial factor, if there is no trustee, the Sheriff 
 has no further duty or responsibility, till the completed deed 
 of arrangement is presented to him for approval. The creditors 
 themselves adjust the deed, and get it signed by the requisite 
 majority of four-fifths in number and value of the creditors, 
 and by the bankrupt. It must be presented within the period 
 of the sist, and at latest within two months, for the power to 
 sist is statutory, and the statute does not authorise the Sheriff 
 to extend the period beyond two months (unless it Palls within 
 Rule 56 of the Sheriff Courts Act, 1907, which is 
 doubtful). If it is not timeously presented, the seques- 
 tration proceeds. If it is timeously presented, the Sheriff's 
 duty is to satisfv himself " that such deed or arrange- 
 " ment has been duly entered into and executed, and
 
 410 BANKEUPTCY. 
 
 "is reasonable." To that end the Sheriff is empowered "to 
 " make such intimation thereof as he may think proper, and 
 " bear parties having an interest, and make any inquiry he 
 "may think necessary." There is no prescribed mode of 
 inquiry, but the general practice is (a) to take a declaration 
 from the bankrupt certifying a list of creditors as inclusive 
 and correct : (//) to intimate to the creditors who have not 
 signed the deed by circular; (c) to notify all having any interest 
 by advertisement in the Gazette, and, if necessary, in the local 
 press; (d) to fix a diet for bearing' any poisons who may appear. 
 As the Sheriff's power to inquire is unrestricted, it is not 
 incompetent to take proof, but in practice this is seldom done. 
 If the deed is regularly executed, in conformity with the statute, 
 it is approved, unless an objector can instantly verify some 
 substantial objection. 
 
 19 & 20 Vict. c. 79, s 38. North of Scotland Bank v. Ire- 
 
 land, 1880, 8 R. 117. 
 
 948. The Sheriff's interlocutor approving of the deed of 
 arrangement also declares the sequestration at an end, and, 
 when this interlocutor lias been recorded in the register of 
 sequestrations, its effect is (a) that the sequestration is in the 
 same position as if it had been recalled ; and (b) that all the 
 creditors, whether they concurred or not, are bound by the 
 deed of arrangement. But an appeal to the Court of Session is 
 competent, for an interlocutor approving of a deed of arrange- 
 ment is not amongst those which are declared not subject to 
 review, and, if not so declared, any interlocutor is appealable. 
 
 19 & 20 Vict. c. 79. s. 31, 38, 40. 170. 
 
 949. But, although the sequestration thus comes to an end, 
 as a judicial process, the award of sequestration has not, in 
 fact, been recalled, and the provision of the statute declaring 
 the process at an end is qualified by this very important 
 proviso, "provided always that the sequestration shall receive 
 " full effect in so far as may be necessary for the purpose of 
 " preventing challenging or setting aside preferences over 
 " the estate." It is this proviso which makes the direction to 
 the Sheriff to satisfy himself that the deed of arrangement 
 is reasonable, fraught with responsibility, for the majority of 
 the creditors may express the deed in many ways, and amongst 
 the minority there may be a creditor who might have been able
 
 DEED OF ARRANGEMENT. Hi 
 
 to plead a preference, or a creditor interested to prevent a 
 preference being acquired by one of the majority. The 
 question, therefore, which the Sheriff has to consider is 
 whether, in the whole circumstances, the terms of the deed 
 are such as the minority creditors should be forced to accept. 
 The terms of the deed should leave no room for dubiety upon 
 such matters, as, for instance, the right of a bankrupt, whom 
 the deed of arrangement re-invests in his estate, to challenge 
 preferences, or whether a purchaser of the estate from the 
 creditors under a deed of arrangement is free of possible pre- 
 ferable claims upon it, or generally whether the preferential 
 rights of creditors and others, as constituted at the date 
 sequestration was awarded, are injuriously affected by the 
 inclusion in the deed of arrangement of certain provisions, or 
 the exclusion of other possible provisions. 
 
 19 & 20 Vict. c. 79, s. 38. Smith v. Smyth, 1889. 16 R. 
 
 392. 
 
 950. The provisions in regard to working out a deed of 
 arrangement, in eases where a trustee has been appointed, leave 
 the trustee in a somewhat indefinite position. Approval of 
 the deed of arrangement brings the sequestration to an end. 
 But the machinery for procuring the trustee's discharge, " after 
 " a final division of the funds,'' is not applicable, and there is 
 no statutory deed of arrangement machinery. But, in the 
 ordinary case of a deed of arrangement, the trustee has not 
 intromitted with the estate, but merely preserved it, and no 
 one has any interest except the bankrupt, if under the deed 
 of arrangement he is re-invested. An application by the 
 trustee, and his cautioner if there is one, with consent of 
 the bankrupt, or intimated to the bankrupt, for authority to 
 the Sheriff-clerk to deliver up the bond of caution is probably 
 a competent proceeding in the Sheriff Court, and in effect, 
 although not in name, a discharge to the trustee. If the trustee 
 insists upon a formal discharge, or if the application for 
 authority to the Sheriff-clerk to deliver up the bond is opposed, 
 the trustee may require to apply to the Court of Session, for 
 in the case of a deed of arrangement the statute does not 
 expressly provide for the trustee's discharge, and the Sheriff's 
 bankruptcy powers are bounded by the statute. 
 
 19 & 20 Vict, c. 79. s. 142, 152.
 
 412 BANKRUPTCY. 
 
 13. Composition Settlement. 
 
 951. The Sheriff's duties in regard to a composition offer, 
 upon which also the sequestration process may he declared at 
 an end, are somewhat similar to his duties in respect of a deed 
 of arrangement, but more formal, for in the case of a composi- 
 tion contract there is a trustee to assist the Court, and he makes 
 a report, with the information to enable the Court to judge of 
 the reasonableness of the arrangement. Moreover, before the 
 Sheriff is required to approve of the composition settlement, 
 the trustee's accounts have been audited by the Commissioners. 
 In practice, therefore, what remains for the Sheriff to do is 
 only to satisfy himself that all the statutory formalities in 
 connection with the composition offer have been complied with, 
 and, if the offer is less than 5s. per £, whether the bankruptcy 
 has arisen from circumstances for which the bankrupt cannot 
 be justly held responsible. Objections are stated by minute, 
 which the trustee and the bankrupt may be allowed to answer, 
 and upon the objections and answers the Sheriff may hear 
 parties, and, if necessary, may take proof. But the only inter- 
 locutor he need pronounce is one approving or not approving 
 of the composition arrangement. If he refuse to sustain the 
 composition offer, or if he reject the vote of any creditor, the 
 Sheriff is bound to specify the grounds of his refusal or 
 rejection. A deliverance either sustaining or refusing a com- 
 position offer is an appealable deliverance. If the interlocutor 
 is one of approval, and there is no appeal taken, or if an appeal 
 is refused, the Sheriff takes from the bankrupt the statutory 
 declaration, and then pronounces a further interlocutor dis- 
 charging the bankrupt, declaring the sequestration at an end, 
 and re-investing the bankrupt in his estates. This also is an 
 appealable deliverance, but the prior question of the approval 
 of the composition settlement cannot be raised under this 
 appeal. That must be separately, and timeously, submitted to 
 review, upon the interlocutor in which the composition offer is 
 approved of. The approval of a composition settlement 
 generally embodies discharge of the trustee. At all events, it 
 entitles the trustee to get his discharge, an application for 
 which is in practice granted by the Sheriff, if the sederunt 
 book has been transmitted to the Accountant, and no objection
 
 COMPOSITION SETTLEMENT. 413 
 
 is made by him or by the bankrupt, or by the cautioner in the 
 composition offer. 
 
 19 & 20 Vict. c. 79, s. 140, 141. Taylor v. Union Heritable 
 
 142. Miv Company, 1889, 16 R. 
 
 -II & 45 Vict c. 22, s. (i. 711. 
 
 Scotti.-li Provincial Assuram 
 Company v. Christie, 1859, 21 
 D. 333. " 
 
 14. Appeal \(.\iwi Tkustkk's Deliverance. 
 
 952. The most important, and by Ear the mosl responsible, 
 duty i»i the Sheriff in bankruptcy is the disposal of appeals 
 against the deliverances of the trustee. An appeal to the 
 Sheriff may be taken (a) by a creditor against the rejection of 
 his claim: (6) by a creditor againsl the admission or rejection 
 of another creditor's claim; (c) by the bankrupt (if he can 
 show an interest) against the admission of a creditor's claim. 
 The appeal is a summary application, in the sense of the 
 Sheriff Courts Acts, 1907-1913, and is presented in the form 
 of an initial writ, narrating the deliverance of the trustee 
 and craving its recall. But, except as regards this matter of 
 form, the provisions of the bankruptcy statutes are not affected 
 by the Sheriff Courts Acts. Accordingly, the initial writ 
 (which has supplanted the note of appeal in form) appealing 
 against the trustee's deliverance can be received only if it is 
 presented within the statutory appeal period, which in general 
 is fourteen days of the date of the deliverance; but in some 
 matters, as, for instance, the declaration of the first and 
 second dividends, is fifteen days from the date of the Gazette 
 notice. Where the appeal is by a creditor against the trustee's 
 deliverance on his own claim, the trustee alone need be called, 
 but, when the appeal concerns the claims of other creditors, 
 these creditors or their mandatories, as well as the trustee, 
 should be called. The directions of the Bankruptcy Act as 
 to procedure are practically the same as those of the Sheriff 
 Courts Acts for procedure in a summary application. It is 
 in the Sheriff's discretion whether formal pleadings are 
 required, whether a formal record be made up and closed, and 
 whether proof be recorded. The general direction of both 
 statutes is that the procedure is to be summary, but that the 
 judgment must be in writing, it being a further provision of 
 the bankruptcy statutes that in the judgment the Sheriff must 
 "specify the facts and assign the grounds of his judgment."
 
 414 BANKKUPTCY. 
 
 The Sheriff's judgment is an appealable deliverance, which 
 may within eight days be submitted to review of the Court of 
 
 Session. 
 
 Appendix, s. 3 (k), {p), 50, Rule Robertson v. Robertson's Trus- 
 
 1, Form A. tee, 1885, 13 R. 424. 
 
 19 & 20 Vict. c. 79. s. 127, 130, M 'George v. M'George's Credi- 
 
 169, 170. tors, 1887, 14 R. 841. 
 
 7 Ed. VII. c. 51, s. 3 (£), 50, 
 Sch. I.. Rules 1, 41. 
 
 15. Discharge of Trustee. 
 
 953. After final division of the funds he has ingathered, 
 the trustee may apply to the Sheriff for his discharge, but the 
 duty of the Court in this matter is generally formal, for, 
 before an application is made to the Court, a creditors' meeting 
 has been held to consider the conduct of the trustee, and the 
 sequestration process has been before the Accountant of Court. 
 Nevertheless, objection may be made before the Sheriff, who, 
 after considering the minutes of the creditors' meeting, " and 
 " hearing any creditor, may pronounce or refuse decree of 
 "exoneration and discharge." The bankrupt has no locus 
 standi to object to the trustee's discharge. Creditors only 
 are entitled to be heard, and their objections must be sub- 
 stantial. It is a good objection that the trustee has not yet 
 fully executed his office, even although what yet remains to 
 be done is formal, as, for instance, the signing of a deed 
 giving effect to some arrangement to which the trustee had 
 been a party, or the conclusion of a pending process at law 
 to which the trustee is, even nominally, a party. But a 
 creditor will not be heard to oppose the trustee's discharge 
 upon mere trifling irregularities in the conduct of the seques- 
 tration process, and the decree of exoneration will generally 
 pass as a matter of course. There is no prescribed form in 
 the Bankruptcy Act for the trustee's application for discharge. 
 As a summary application to the Sheriff Court, it will take 
 the form of an initial writ, upon which, if there is no objector, 
 exoneration may be granted de ylano ; but if objection has 
 been made a diet will be fixed and intimation ordered to any 
 creditors who at the creditors' meeting had objected to the 
 discharge, and to creditors generally by Gazette notice, if 
 considered necessary. 
 
 19 & 20 Vict. c. 79, s. 152. Lindsay v. Hendrie, 1879, 6 R. 
 
 Mylne v. M 'Galium, 1878, 5 R. 1246, 7 R. 911. 
 
 546.
 
 DISCHARGE OF TRVSTKK. 415 
 
 Hi. Discs lege of Bankrupt. 
 
 954. The bankrupl also may apply io the Sheriff for 
 
 discharge. If the application is made with the concurrence of 
 
 creditors, the Sheriff's duty will probably be more or less 
 
 formal, but, after the expiration of two years, the bankrupt 
 
 requires no consent of creditors. Whether with or without 
 
 consents, the bankrupt's application for his discharge is a 
 
 summary application in the form of an initial writ, narrating 
 
 shortly the then situation of the sequestration process, referring 
 
 to the statutory report of the trustee produced with the 
 
 application, and craving discharge. The trustee's report is 
 
 prima facie evidence of the facts set forth in it, although it 
 
 may be challenged by an objector to the discharge. If the 
 
 report is satisfactory, the onus rests upon an objector of 
 
 establishing any grounds for refusing the discharge, excepl 
 
 that of failure to pay a 5s. dividend, or that of fraudulent 
 
 concealment of estate, or wilful failure to comply with the 
 
 statutory requirements. Even if the trustee's report is not 
 
 favourable to the bankrupt, it does not of itself preclude the 
 
 granting of the discharge, when no objector appears to oppose. 
 
 The application is intimated to each creditor and published in 
 
 the Gazette, and if, at a diet not less than twenty-one days 
 
 after the posting of circular to creditors and publication in 
 
 the Gazette, no objector appear, the discharge is regarded as 
 
 unopposed by creditors. An interlocutor granting a bankrupt 
 
 his discharge may be appealed to the Court of Session. 
 
 19 & 20 Vict. c. 79, s. 146. Dixon's Trustees v. Campbell, 
 
 1867. 5 M. 767. 
 
 955. But on certain grounds, even after the lapse of two 
 years, and although no objector appear, the discharge may be 
 refused " if it appear from the report of the Accountant in 
 "Bankruptcy, or other sufficient evidence, that the bankrupt 
 "has fraudulently concealed any part of his estate or effects, 
 " or has wilfully failed to comply with any of the provisions 
 "of the Bankruptcy (Scotland) Act. L856." If the Account- 
 ant's report is to that effect, the Sheriff will generally, although 
 not necessarily, refuse the discharge; bul if there is no 
 unfavourable report by the Accountant, and it is an objector 
 who submits the "other sutlicietit evidence" to establish 
 fraudulent concealment or wilful failure to comply, the Sheriff 
 will judge for himself of its sufficiency, and may grant or
 
 416 BANKRUPTCY. 
 
 refuse the discharge in his discretion, or may suspend it, or 
 
 grant it conditionally. 
 
 19 & 20 Vict. c. 79, s. 146. .Millar, 1877, 5 R. 144. 
 
 23 & 24 Vict. c. 33. s. 3. Neil v. Neil's Trustees. 1873, 1 
 
 Cooper r. Frazer, 1372. 11 M. 38. R. 320. 
 
 956. The Bankruptcy and Cessio Act of 1881 created 
 another obstacle to a bankrupt obtaining liis discharge, and 
 upon the Sheriff rests the duty of deciding whether the 
 bankrupt has surmounted it, for the onus is thrown upon the 
 bankrupt. Prior to 1SS1, the amount of dividend yielded by 
 a bankrupt estate was not an element which entered into the 
 question of the bankrupt obtaining his discharge, but the 
 Sheriff is now required to take this element into account. If 
 five shillings per pound has not been paid, a statutory pre- 
 sumption arises against the bankrupt that he is barred from 
 obtaining Lis discharge. But he may rebut this by satisfying 
 the Sheriff thai the failure to pay this dividend has "arisen 
 "from circumstances for which the bankrupt cannot justly be 
 "held responsible." At first sight, the discretion of the Sheriff 
 would appear to be practically abrogated, or at least reduced 
 to a minimum, by a statutory enactment which saddles a 
 bankrupt with the onus of establishing a negative proposition 
 of this sort. But, Tinder the original Bankruptcy Acts the 
 Sheriff had a very wide discretion, and the more recent statutes 
 have been interpreted to mean that " the refusal of the 
 "discharge is only obligatory in cases where the failure to 
 "' pay five shillings in the pound has arisen wholly or mainly 
 "from the fault of the bankrupt; but where the bankrupt has 
 " only contributed to this result by negligence or imprudence, 
 "and where other muses for which he is not responsible have 
 "contributed to it in a greater degree, the Court is at liberty 
 "to exercise the discretion vested in it by the previous bank- 
 "ruptey statutes." In every case, however, where five shillings 
 per pound has not been paid, it becomes necessary to fix a 
 diet, and to hear proof. 
 
 19 & 20 Vict. c. 79, s. 140. Shand, 1882, 19 S.L.R, 562 (per 
 
 44 & 45 Vict. c. 22, s. 6. Lord M'Laren). 
 
 IT. Miscellaneous Procedure. 
 
 957. In the course of a sequestration process, many other 
 occasions may arise in which the aid of the Sheriff may be 
 invoked — as, for instance, the securing of books and papers, or
 
 MISCELLANEOUS PROCEDURE. 417 
 
 locking up premises pending the appointmenl oi a trustee, 
 upon application by a creditor; or tin- valuing of an annuity 
 or a cunt ingenl claim, which a creditor is entitled to have done 
 by a deliverance of the Sheriff; or the opening of postal 
 correspondence addressed to the bankrupt, which 1 lie Court 
 may authorise upon the application of the trustee; or the 
 compelling of the bankrupt to sign deeds, which, upon the 
 application of the trustee, the Court may ordain the bankrupt 
 to do, under pain of imprisonmenl ; or the acceleration of the 
 periods for paying dividends, which the Court may sanction 
 upon the application of the trustee. In all these matters, 
 and others of a like nature, the aid of the Court is invoked by 
 means of a summary application, in the form of an initial 
 writ, briefly narrating the circumstances and stating the 
 judicial aid desired. In most of such applications no service 
 or intimation is requisite. In some few it is, but in all the 
 procedure is summary, and the judgment alone is required to 
 be in writing. 
 
 Appendix, s. 3 (»), 50. 7 Ed. VII. c. 51, s. 50, Sch. 1.. 
 
 19 & 20 Viet. c. 79, s. 17, 53, Rides 1. 50. 
 
 54, 81, 133. 179. 
 
 18. Procedure Rules. 
 
 958. In a bankruptcy process conducted in the Sheriff 
 Court, as in a process of any other kind, the rules of procedure 
 commonly in use apply where they are appropriate, unless 
 excluded by statute. In some matters a bankruptcy process 
 differs from an ordinary process, as, for instance, it does not 
 fall asleep in a year and a day; citation may be made by a 
 competent officer without a witness; deeds and writings, which 
 might otherwise require stamping-, are, when used for bank- 
 ruptcy purposes, exempt from stamp duty; personal attendance 
 of a creditor is dispensed with when his mandatory appears; 
 and an appeal is against some particular deliverance only, and 
 does not subject to review all prior deliverances; but in the 
 broad sense a bankruptcy process is a Sheriff Court process 
 not different from any other, and is subject to the rules which 
 regulate the conduct of process generally, more especially when 
 the proceedings take on the character of litigation. 
 
 Appendix, s. 39. Scottish Provincial Assurance 
 
 19 & 20 Vict. c. 79, s. 43, 175, Company r. Christie, 1859, 21 
 
 184. D. 333. 
 
 23 & 24 Vict. c. 33, s. 8. Alison r. Robertson, 1890, 18 R. 
 
 7 Ed. VII. c. 51, s. 39, Sch. I. 212. 
 
 27
 
 418 BANKRUPTCY. 
 
 959. Statutory applications under the bankruptcy statutes, 
 brought for the purpose of carrying out their provisions, are 
 in general summary applications within the meaning of the 
 Sheriff Courts Acts, 1907-1913; but It does not follow that every 
 action by a bankruptcy trustee is necessarily a summary 
 application. Thus, whilst it is only in virtue of bankruptcy 
 enactments thai a bankruptcy trustee lias a title to attack 
 transactions Palling within the statutes, directed againsl 
 gratuitous alienations, or preferences, granted by an insolvent, 
 the mode in which the trustee operates his right in the Sheriff 
 Court is by an ordinary action, not by a summary application. 
 So, also, although it is in virtue of the bankruptcy statutes 
 that a trustee obtains a title to recover debts and enforce 
 obligations which the bankrupt might have recovered or 
 enforced, the trustee, in his representative capacity, sues, in 
 the manner of any other pursuer, an action for payment or 
 implement. 
 
 Act 1621, c. 18. Act 1696, c. 5. 
 
 960. In the bankruptcy statutes, the minute bringing a 
 deliverance of the trustee or a resolution of creditors under 
 review of the Sheriff is described as a " note of appeal." lint 
 under the Sheriff Courts Act, 1907, a note of appeal, as a 
 process designation in Sheriff Court practice, has been merged 
 in the modern title " initial writ." An appeal to the Sheriff 
 in a bankruptcy process, like every other bankruptcy proceed- 
 ing, is a civil proceeding in the ordinary Sheriff Court, and so 
 it is an action, which must be commenced by an initial writ, 
 the now universal form for presenting an application of any 
 sort in the Sheriff Court. Accordingly, whenever the bank- 
 ruptcy statutes direct any matter to be brought before the 
 Court by a note of appeal, such direction is now read as mean- 
 ing by an initial writ. A judgment of the Sheriff, if further 
 appeal is competent, is brought under review of the Court of 
 Session by note of appeal in the same way as in an ordinary 
 action, for tin' bankruptcy statute prescribes no form of note of 
 appeal, and that of the Sheriff Courts Acts is appropriate. 
 There is, in no circumstances, in bankruptcy proceedings, an 
 intermediate appeal from the Sheriff-Substitute to the Sheriff, 
 but eveiy deliverance pronounced in the Sheriff Court is 
 appealable to the Court of Session, unless where the statute 
 expressly or by necessary implication excludes appeal, as, for
 
 PROCEDI'I.'K RULES. H9 
 
 i n s I ; 1 1 x • ■ ■ . the deliverance awarding sequestration, or where it 
 
 restricts ii to the Lord Ordinary on the Bills. The Lord 
 
 Ordinary's judgment, whether he is the appellate judge in an 
 
 original appeal from creditors or trustee, or is the appellate 
 
 judge in a statutory appeal to him Erom the Sheriff, is always 
 
 subject to review by the [nner Souse, if Buch review is ao1 
 
 expressly excluded; and an ultimate appeal to the Eouse of 
 
 Lords is competent, unless in regard to matters upon which 
 
 such appeal is barred, as, for instance, under the Bankruptcy 
 
 and Cessio Act of 1881, upon the question of the bankrupt's 
 
 right to a discharge, notwithstanding his estates have not 
 
 yielded five shillings per pound, regarding which the statute 
 
 expressly enacts thai judgmenl of the Inner House is final. 
 
 Appendix, Rule 93. Tennent v. Crawford, 1878, 5 
 
 19 & 20 Vict. c. 79, s. 31, 169. R. 433. 
 
 170. Marr v. Lindsay, 1881, 8 R. 
 
 44 & 45 Vict. c. 22, s. 6 (3). 784. 
 7 Ed. YIT. c. 51, s. 3 (d), (A), 
 
 Sch. I., Rule 1, 93. 
 
 19. Deceased Debtor. 
 
 961. An application for sequestration of the estates of a 
 deceased debtor is only competent in the Sheriff Court, if the 
 deceased had resided or carried on business within the 
 sheriffdom for the year preceding- his death. If he had not 
 so resided or carried on business, but had resided within 
 Scotland, and was at the time of his death subject to the 
 jurisdiction of the Supreme Courts of Scotland, application 
 is competent only in the Court of Session, the application being 
 made to the Lord Ordinary on the Bills. The petitioning 
 creditor does not, in the case of a deceased debtor, necessarily 
 require to instruct notour bankruptcy, as is essential in the 
 case of a living debtor, but sequestration may not be awarded 
 till the expiry of at least six months from the date of death, 
 unless the debtor was notour bankrupt at the time of his death, 
 or the application is made with the concurrence of the 
 successors, who renounce the succession. But " successors " 
 include " all persons who have succeeded to any property which 
 "was vested in a party deceased at the time of his death, 
 "whether as heirs, heirs-apparent, trustees under voluntary 
 "conveyances, representatives by deed or otherwise, executors, 
 " administrators, or nearest of kin, or as assignees or legatees, 
 " and shall also include singular successors where they have
 
 420 BANKRUPTCY. 
 
 " acquired the right." ruder a definition so wide, the persons: 
 whose concurrence should be asked, or who should be called, 
 is somewhat vague, but at least all persons who have a direct 
 interest in the succession should be called, in addition to the 
 general intimation by Gazette notice. A successor, as well as 
 a creditor, may oppose the granting of an award of sequestra- 
 tion, and the Sheriff may hear parties, and, if necessary, take 
 proof upon objections, either stated at the bar or embodied in 
 a minute. If sequestration is awarded, and the succession is 
 renounced, a meeting to elect a trustee is held, as in the case 
 of a living debtor; but if succession has not been renounced, 
 the awarding- of sequestration is deferred for six months, and a 
 judicial factor is usually appointed. If there are testamentary- 
 trustees amongst the successors, they may apply, under the 
 Judicial Factors Act, 1889, to the Court of Session for an order 
 putting the estate under the supervision of the Accountant of 
 Court. 
 
 19 & 20 Vict. c. 79, s. 13, 26, Bell's Trustees v. Bell's Trustee, 
 
 29. 1882, 10 R. 370. 
 
 52 & 53 Vict. c. 39, s. 18. 
 
 962. The proceedings subsequent to the meeting for the 
 election of trustee are the same in the case of a deceased debtor, 
 as in the case of a living debtor, except that, of course, there 
 is no bankruptcy examination. But there may be examina- 
 tion of third parties, and, in other respects, the statutory 
 provisions apply, except so far as they are personal to the 
 bankrupt. 
 
 963. Sequestration of the estates of a deceased person is 
 not, however, frequent in the Sheriff Court, because the 
 Bankruptcy Act provides another process more convenient in 
 its working, which is applicable in the case of a deceased 
 person having left no settlement appointing trustees or other 
 parties with power to manage his estate, or to the case of 
 nominated testamentary trustees declining to accept office to 
 administer an insolvent executry estate. In that event, one 
 or more creditors to the amount of £100, or any person having 
 an interest in the succession, may procure the appointment of 
 a judicial factor, who winds up the estate under the super- 
 vision of the Accountant of Court, and under the control of the
 
 I'K('KASKI) DKIiTOII. 421 
 
 Court of Session. This process is not competent in the Sheriff 
 Court, but only in the Court of Session. 
 19 & 20 Vict. c. 79. s. 164, 166. 
 
 20. Company Debtor. 
 
 964. Wherever sequestration proceedings at the instance oi 
 
 creditors are competent in the Sheriff Court against an 
 individual bankrupt, they are in like manner competent against 
 any company or corporation. Besides the company itself being- 
 made notour bankrupt in the ordinary way, notour bankruptcy 
 of a company may be constituted by any partner being rendered 
 notour bankrupt for a company debt, but for a company debt 
 only, for diligence against a partner for a private debt, or 
 even the making of an application by a partner for sequestra- 
 tion of his own estates, has no effect as constituting notour 
 bankruptcy against the company. Notour bankruptcy may be 
 thus constituted, only when the partner is in law liable 
 personally for company debts, for otherwise a partner could 
 not be charged under a decree against the company. Thus 
 members of corporate bodies, who are not personally liable for 
 the debts of the corporation, cannot be made the medium for 
 rendering the corporation notour bankrupt, notwithstanding 
 that, in the bankruptcy statutes, " company " includes " bodies 
 "corporate, politic, or collegiate, and partnerships," and that 
 " partner " includes " the members of such bodies." A limited 
 company registered under the Companies Acts is not a company 
 in the sense of the bankruptcy statutes, and its estates are 
 not liable to sequestration, although a resolution to wind up is 
 an "act of bankruptcy'' under the Companies Acts; nor are 
 companies which, although not registered, are by statute 
 exempted from ordinary diligence, or can be wound up only 
 by statutory authority, as for instance, public railway 
 companies. The machinery of the Bankruptcy Acts does not 
 apply at all in a company liquidation, for the Court of Session 
 alone has jurisdiction in the liquidation of limited companies. 
 
 19 & 20 Vict. c. 79. s. 4, 7. 8. Standard Property Investment 
 
 25 & 26 Vict. c. 89. s. 164. Company, Limited v. Dun- 
 
 30 & 31 Vict. c. 126, s. 4. blane " Hydro Company. 
 
 8 Ed. VII. c. 69, s. 193, 208. Limited, 1884, 12 R. 328. 
 
 Union Bank v. Macadam. 1880, M'Lellan & Company v. Mitchell 
 
 7 R. 655. (Liquidator of Patent Buoy 
 
 National Bank v. Macqueen, Company), 1909, 2 S.L.T. 408 
 
 1881, 18 S.L.R. 683.
 
 422 BANKRUPTCY. 
 
 965. A company, being a separate persona in law, may 
 apply for sequestration of its estates under the bankruptcy 
 statutes, or may be sequestrated at the instance of creditors, 
 independently of its partners, or ay here there are no partners, 
 or no known partners, as in the case of a descriptive firm, which 
 may now be sued and charged under its descriptive name, and 
 under that name also may be sequestrated. The sequestration 
 of a company proceeds in all respects in the same manner as 
 that of an individual; but if a company and its partners are 
 all sequestrated, as is common where there are known partners 
 liable for company debts, the estates of the company and those 
 of the partners are separate estates, which must be separately 
 administered, and upon which it is competent, although not 
 essential, nor usual, to elect separate trustees. In the case of 
 a creditor's application, citation may be made (ji) at the place 
 where the company last carried on business, if a partner or 
 servant is found there; (b) failing that, at the dwelling-house 
 of any known partner; or (c) edictally. 
 
 Appendix, Rules 11, 151. 7 Ed. VII. c. 51, Sch. I., Rules, 
 
 19 & 20 Vict. c. 79, s. 13. 11. 151. 
 
 2 & 3 Geo. V. c. 28, Sch. II. 
 
 21. Cessio. 
 
 9GG. The modern cessio, which is a process competent in the 
 Sheriff Court alone, is a bankruptcy process for the distribution 
 amongst creditors of a debtor's estate. It is, in a sense, a form 
 of diligence, and it is not incompetent for a creditor to make an 
 application for cessio, concurrent with other diligence; but in 
 that event the creditor may not recover the expenses of such 
 double diligence. Originally it was a process primarily for 
 protecting a debtor against imprisonment for debt, but, with 
 the abolition of imprisonment as a legal remedy, its character 
 changed, and it is now in effect a summary bankruptcy process. 
 As in bankruptcy proper, a cessio application may be at the 
 instance of the debtor himself, but without concurrence of 
 creditors; or it may be at the instance of creditors, but without 
 restriction as to the amount of their debts. As in bankruptcy 
 also the estate is administered by a trustee, under the super- 
 vision of the Accountant of Court, but the trustee is not elected 
 as in bankruptcy, but nominated by the Sheriff. If the 
 creditors present at the first diet are agreed upon a trustee, he 
 is usually nominated. There is also an examination of the
 
 CESSIO. 1.23 
 
 bankrupt, hut it takes place before, qo1 after, the appointment 
 of the trustee, and is conducted aol bj the trustee, l>ut by 
 the petitioning creditor or bis law agent, and by other creditors 
 present. The proceedings generally are much more summary, 
 and in some respects materially different from, the procedure 
 in a sequestration under the Bankruptcy A.cts. 
 
 39 & 40 Vict. c. 70, s. 26 (1). Act of Sederunt, 22nd Dec, 
 
 43 & 44 Vict. c. 34. 1832. 
 
 44 & 45 Vict. c. 22. Clayson v. Kennedy, 1910, 26 
 
 S.C.R. 117. 
 
 967. It is a condition precedent in every cessio, whether 
 
 at the instance of the debtor himself or of a creditor, that the 
 debtor be notour bankrupt. Notour bankruptcy is constituted 
 as in bankruptcy proper. An expired charge of itself con- 
 stitutes notour bankruptcy, whatever the amount of the debt. 
 Prima fetcie evidence of notour bankruptcy must be produced 
 with the application, and, if satisfied therewith, the Sheriff 
 appoints the pursuer to advertise the application in the Gazette, 
 and to intimate it to the known creditors, fixes a dale for the 
 first statutory meeting-, and ordains the debtor then to appear 
 for public examination, and meantime to lodge a state of his 
 affairs. This deliverance is not subject to review. The Sheriff 
 is the sole judg'e of the sufficiency of the evidence of notour 
 bankruptcy; hut, if he is satisfied with that, he has no dis- 
 cretion to grant or refuse a first deliverance, but is bound to 
 granf it. If the application is at the instance of a creditor, the 
 first deliverance includes an order for service on the debtor, 
 upon an induciae of not less than eight days. 
 
 43 & 44 Vict. c. 34. Cornforth v. Powell, 1896, 12 
 
 44 & 45 Vict, c. 22, s. 12. S.C.R. 200. 
 
 Adam v. Kinnes, 1883, 10 R. Harvie v. Smith, 1908, S.C. 474. 
 
 670. Black r. Humphrey, 1911, S.C. 
 
 618. 
 
 968. When the proceeding's are founded upon a decree of 
 Court, followed by a charge, and the diligence is <;/• facie 
 regular, the evidence of notour bankruptcy is in practice 
 accepted, and the debtor will not be permitted, in the cessio 
 process, to attack the decree or the diligence; but where the 
 charge has been given upon an extract registered bond, or other 
 document of debt, it may be competent for the Court to enter- 
 tain objections to the constitution of notour bankruptcy, as, 
 for instance, that a bond had been discharged, or that upon a
 
 424 BANKRUPTCY. 
 
 true accounting under it the debtor is not owing anything, 
 or generally that, at the date of presenting the cessio applica- 
 tion, there was no real debtor and creditor relationship. If the 
 debtor instincts a prima facie objection of this sort, the Court 
 may hold that there is not prima facie evidence of notour 
 bankruptcy, and the cessio proceedings may be sisted to enable 
 the debtor, in a competent process, to reduce the document of 
 deht founded on. 
 
 Teenan's Trustee v. Teenan, Aitkcn v. Kyd, 1890, 23 S.L.R. 
 
 1886, 13 R. 833. 115. 
 
 M'Xab r. (larko, 1889, 16 R. 
 
 610. 
 
 969. In a cessio, the creditors do not meet independently, as 
 in a bankruptcy proper. The official diets in the cessio are 
 also the creditors' meetings, which are held in Court, in 
 presence of the Sheriff. In normal circumstances, there are 
 only two meetings; the first, at which the bankrupt is examined 
 and a trustee appointed, and the second, at which the trustee 
 submits his accounts and scheme of division of the estate, at 
 which also the Sheriff hears and summarily disposes of 
 objections to the trustee's deliverances upon the creditors' 
 claims; the trustee's accounts are audited and adjusted, his 
 remuneration is fixed by the Sheriff (not by the creditors); 
 and an order is made for payment to the creditors of the estate 
 available for division, if there is any estate available. The 
 second meeting may be adjourned, and the trustee's account 
 remitted for audit, and this is the general practice where the 
 account is at all intricate, and there is any estate available for 
 division. 
 
 43 & 44 Vict. c. 34. Act of Sederunt, 22nd Dec, 
 
 1882. 
 
 ( J70. An application in cessio, being a civil proceeding in 
 the Ordinary Sheriff Court, is an "action," and must accord- 
 ingly commence by initial writ, which should narrate the 
 notour bankruptcy, and set forth a list of creditors, so far as 
 known to the pursuer. If the pursuer is the debtor himself, 
 he should disclose the names and addresses of all his creditors, 
 but not necessarily the amount of their respective debts, 
 although it is convenient that he should do so, in view of 
 possible conversion of the cessio into a sequestration. If 
 the pursuer is a creditor, he should specify the creditors he
 
 CESSIO. 425 
 
 knows of, or say thai be is unaware of any creditors other 
 than himself. If it is at the instance of the debtor, the crave 
 is to appoinl a trustee. A creditor's crave is that the debtor 
 he ordained to execute in favour of a trustee a disposition 
 
 omnium bum, rum. His executing such a disposition was, 
 under the old practice, a condition of an incarcerated debtor 
 obtaining his release, and the old procedure has been imported 
 into the modern process; but the actual execution of the 
 disposition is of little consequence, unless the debtor has 
 heritable estate, and it is seldom insisted upon in practice, 
 because I he statute declares that a decree ordaining- a debtor 
 to grant a disposition "shall operate as an assignation of his 
 "moveables in favour of any trustee mentioned in the decree 
 "for behoof of such creditors," and such a decree is operative 
 from its date. 
 
 43 & 44 Vict. c. 34, s. 7, 8, 9 (5). Gordon's Trustees v. M'Gregor, 
 
 1895, 32 S.L.R. 257. 
 
 971. The first deliverance (a) fixes a diet for the first 
 meeting-, which diet must be at least eight days after the 
 Gazette notice; (b) appoints the pursuer to intimate this 
 generally by Gazette notice, and particularly within five days 
 after the Gazette notice, by postal letter to the disclosed 
 creditors; (c) ordains the debtor to appear at the diet for 
 public examination, and at least six days prior to the diet to 
 lodge a state of his affairs. If the application is by the 
 debtor himself, there is no need for service. If it is a 
 creditors' application, the first deliverance contains also (d) a 
 warrant for service upon the debtor. There being no statutory 
 directions as to the mode of service, it will be effected by 
 officer, or by post, in the ordinary manner, and in terms of 
 the regulations applicable to warrants of service granted upon 
 other Sheriff Court writs. Thus, the debtor may be cited 
 anywhere within Scotland, without the necessity of the warrant 
 being endorsed by the Sheriff-clerk of the sheriffdom where he 
 may happen to be; and if the debtor is a corporation or firm, 
 whether nominate or descriptive, citation may be made at the 
 principal place of business if that is within the jurisdiction of 
 the Sheriff who issued the warrant, or at any other place 
 within the jurisdiction where the business is carried on; if 
 service is made by an officer, one witness must accompany 
 him; re-service may be ordered if any irregularity has
 
 42G BANKRUPTCY. 
 
 occurred; and if the debtor appears he is precluded front 
 stating any objection to the regularity of the service. 
 
 Appendix, Rules 10. 11, 12, 13. 7 Ed. VII. c 51, Sch. I.. Rules 
 
 43 & 44 Vict. c. 34, s. 9 (1). 10, 11, 12, 13. 
 
 44 & 45 Vict. c. 22, s. 12. Marquis of Lothian v. Smith, 
 
 1884, 12 R. 580. 
 
 !)7'J. A ee.ssio process is one to which the provision of the 
 Sheriff Courts Acts is peculiarly appropriate, thai where there 
 are several defenders an action may be brought in the Sheriff 
 Court within whose jurisdiction any one of the defenders 
 resides. In the very common case of decree of cessio being' 
 craved against a firm and partners, it frequently happens that 
 the business has been carried on in one sheriffdom, whilst 
 one or more partners reside in another. In that event, the 
 pursuer has the option to sue either in the jurisdiction where 
 the firm carries on business, or in that where any of the 
 partners resides. If the business is still being carried on, the 
 more convenient forum will probably be that of the firm, but 
 if, as is quite likely, by the time a cessio application is 
 presented, the business has come to a standstill, and the main 
 object of the proceedings is to make the partners' estates 
 available to the firm's creditors, the more convenient forum 
 will probably be that of the partners. But, in the first 
 instance, the selection rests with the pursuer, subject to the 
 Sheriff's powers of transfer. A debtor who has no business 
 domicile must be sued in the sheriffdom of his residential 
 domicile, and this, in the case of persons whose domicile is 
 derivative, follows the usual rule. Thus, the domicile of a 
 minor is presumably that of his lather, although it may be 
 shown that he has acquired a new domicile for himself; and 
 the domicile of a married woman is presumably that of her 
 husband, although she may be subject to another jurisdiction 
 Eor cessio proceedings if she has been judicially separated, 
 or her husband is abroad or under civil disability, or she 
 holds a protection order under the Conjugal Rights Amend- 
 ment Acts, or has a separate estate, or, in the more common 
 case, where 1 she trades 14)011 her own account, and has failed 
 to pay her t rade debts. 
 
 Appendix, s. 6 (a), Rule 20. 44 & 45 Vict, c. 21. 
 
 24 & 25 Vict. c. 80, s. 1. 7 Ed. VII. c. 51, s. 6 (a), {b), 
 
 37 & 38 Vict. c. 31. Sch. I., Rule 20. 
 
 40 & 41 Vict. c. 29. 
 
 973. The contemplation of the statute of 1880 is that the
 
 CESSIO. 427 
 
 first diet of compearance is a peremptory diet. The Sheriff 
 baa statutory power to adjourn the "examination" of the 
 debtor, but he bas no express power to alter the date of the 
 diet of compearance, and adjourning the first diet simpliciter 
 would in effect be altering the diet of compearance. It is 
 only for very good reason, therefore, thai the proceedings at 
 the lii>t diet of compearance do aol go on, and, if i1 is com- 
 petent at all to substitute a now diet, which is very doubtful, 
 the now diet should bo intimated to the creditors in the same 
 manner as the original diet. Besides, other creditors may 
 have presented, or be in a position to present, a cessio applica- 
 tion asrainst the debtor, so that creditors other than the 
 petitioning creditor may insist upon the proceedings going 
 on at the first diet of compearance, and in practice the pro- 
 ceeding's do go on, for an individual petitioning creditor is 
 not permitted to use a cessio process merely to compel 
 payment of his individual debt. The process is not a debts 
 recovery diligence, but one to effect the distribution of the 
 debtor's estate rateably amongst all his creditors. 
 43 & 44 Vict. c. 34, s. 9 (1). 
 
 974. Accordingly, if the petitioning creditor is not pre- 
 pared to follow out the process, it does not thereby fall, for 
 any other creditor who is present or represented at the first 
 diet may be sisted. The practice is for such creditor to put 
 in a minute craving to be sisted, and it the person thus 
 intervening is ex facie a creditor, the Sheriff will sist him as 
 pursuer in the process. 
 
 Rowan v. M'Laughlan, 1905, 7 Flynn, 1909, 25 S.C.R. 103. 
 
 F. 542. 
 
 975. If the debtor fails to attend, the Sheriff may grant a 
 warrant to apprehend him, and bring him before the Court 
 for examination, tor the powers of the Bankruptcy Act of 
 1850, relative to examination in bankruptcy, are imported 
 into the cessio process. If there is a good reason for the 
 bankrupt's absence, there may. in an occasional case, be 
 special circumstances warranting the diet of examination 
 being adjourned, and such a warrant being granted, bul in 
 practice it is seldom asked for, because (a) it the applicant, 
 whether he be the debtor himself, or a creditor, does not 
 attend to support his application at the diet of compearance,
 
 428 BANKETTPTCT. 
 
 it will Hall to be dismissed; or (b) the Sheriff may -rani decree, 
 and appoinl .1 trustee, notwithstanding the debtor's absence, 
 and, if necessary, the examination can be taken at a later 
 diet, one of the bankruptcy provisions imported into the cessio 
 code being "the Sheriff may, on the application of the trustee, 
 "order the bankrupt to be examined as often as he shall see 
 "fit." 
 
 19 & 20 Vict, c 79, s. 146. 44 & 45 Vict. c. 22. s. 9, 10. 
 
 970. Third parties may he examined in cessio, as in bank- 
 ruptcy proper, upon the application of the trustee, and their 
 attendance tor examination may be enforced in the like manner. 
 
 19 & 20 Vict. c. 79. s. 90, 91. 44 & 45 Vict. c. 22, s. 10. 
 
 977. The discharge of the debtor is subject to the like 
 conditions as in bankruptcy, the date of the decree of cessio 
 being- the point of time from which are reckoned the various 
 periods at which the discharge may be applied for. But in a 
 cessio process the deliverance of the Sheriff granting, post- 
 poning, or refusing a discharge is final, and not subject to 
 review. As in bankruptcy, discharge may be refused if the 
 creditors have not been paid, or had secured to them, a dividend 
 ot 5s. per £, unless the failure to pay such a dividend has arisen 
 from circumstances for which the debtor cannot justly be held 
 responsible. 
 
 19 & 20 Vict. c. 79, s. 146. 44 & 45 Vict. c. 22, s. 5. 
 
 978. The trustee is discharged, nominally by the Sheriff, but 
 virtually by the Accountant of Court, to whom the trustee 
 submits the details of his intromissions. The Accountant 
 may require the trustee to readjust his accounts, and to restore 
 sums debited in his account, but which, in the opinion of the 
 Accountant, are not proper charges against the estate, or the 
 Accountant may report any matter to which he takes exception 
 to the Sheriff, who may make such order as is appropriate. 
 "When the Accountant is satisfied, he grants the trustee a 
 certificate that he is entitled to his discharge, and upon this 
 the trustee may present an application craving a discharge. 
 The Accountant's certificate is often regarded as itself a 
 sufficient discharge. But the trustee may require to be formally 
 •discharged by theCourt before his cautioner can get up his bond.
 
 CESSIO. 129 
 
 During the conducl of the process, the trustee is under the 
 supervision of the Accountant, and of the Sheriff, who, "on 
 "a report of the Accountant in bankruptcy, or complainl by 
 " the debtor or any creditor, or ex proprio motu, may deal with 
 "any aeglect of duty, irregularity, or miscondud on the pari 
 "of the trustee, and may pronounce such order or provide such 
 "remedy as the case may require, and he may remove the 
 " trustee." 
 
 44 & 45 Vict. c. 22, s. 8. Act of Sederunt, 22nd December, 
 
 1882, s. 18-20. 
 
 9T9. If the liabilities of a debtor exceed £200, the Sherifl 
 may convert the cessio into a sequestration, by awarding 
 
 sequestration of the debtor's estates, and pronouncing an 
 interlocutor in the terms prescribed by the Bankruptcy Acts 
 as the tirst deliverance in a sequestration, whereupon the 
 provisions of the Bankruptcy Acts become applicable, 
 including- the provisions precluding- appeal, and declaring such 
 a deliverance subject to review only by way of proceedings in 
 the Court of Session for recall. This power of converting a 
 cessio into a sequestration process may be exercised by the 
 Sheriff ex proprio modi, but in practice it is exercised on the 
 motion of a creditor, or of the trustee, if one has been elected. 
 Such a motion is commonly made at the first diet of compear- 
 ance, before any proceedings have taken place, and that 
 is obviously the convenient time, but the statute has no time 
 limit, and such a motion is competent at any lime before the 
 debtor is discharged, but not later. 
 
 44 & 45 Vict. c. 22, s. 11. Rattray, 1887. 3 S.C.R. 342. 
 
 980. The Sheriff Court Act of 1870, which gave the Sheriff 
 Court sole jurisdiction in a cessio process, recognises that 
 process as an ordinary action, interlocutors pronounced in 
 which "shall be reviewed on appeal in the same form, and 
 "'subject to the like provisions, restrictions, and conditions as 
 "are by law provided in regard to appeals against any judg- 
 " ment or interlocutor pronounced in any other action in the 
 "Sheriff's Ordinary Court." Accordingly, interlocutors of the 
 Sheriff-Substitute, which would be appealable in an ordinary 
 action to the Sheriff, are, in like manner, appealable to the 
 Sherilf in a cessio process, except so far as appeal is precluded 
 by the Cessio Acts. In this matter, cessio differs from bank-
 
 130 BANKRUPTCY. 
 
 ruptcy, in which the intermediate appeal to the Sheriff is not 
 i ecognised. 
 
 39 & 40 Vict. c. 70. s. 26 (4). Broatch v. Tattison, 1898, 1 F. 
 
 Henderson v. Grant, 1896. 23 R. 303. 
 
 659. 
 
 981. Of the grounds upon which appeal to the Sheriff 
 is ordinarily competent, only two are appropriate to a cessio 
 process (a) that the interlocutor is a final judgment of the 
 Sheriff-Substitute, or (b) that be has allowed leave to appeal. 
 But the Sheriff Court rule applicable to all appeals, which 
 submits to review all prior interlocutors, applies also in a 
 cessio process, in which respect cessio differs Irom bank- 
 ruptcy. So also does the other Sheriff Court rule that an 
 appeal noted by one party may be insisted in by any other 
 party. So that any creditor, or the trustee, or the debtor, 
 who are all " parties in the cause,'' may insist in an appeal in 
 cessio, whoever had noted it. 
 
 Appendix, s. 27 29. 7 Ed. VII. c. 51, s. 27 29. 
 
 39 & 40 Vict. c. 70, s. 26 (4). 
 
 982. No written judgment is pronounced upon any 
 question raised prior to the first deliverance, as, for instance, 
 upon a caveat for the debtor, or for a creditor, objecting to the 
 first deliverance being granted, and so there can he no appeal- 
 able judgment prior to the first deliverance. Nor is the first 
 deliverance itself an appealable judgment. It is no more 
 than a warrant, which the Sheriff is bound by the statute to 
 grant, if satisfactory evidence of notour bankruptcy is pro- 
 duced to him. No appealable judgment — indeed, no " judg- 
 ement " at all — can be pronounced in a cessio till the diet of 
 compearance. Then the possible appealable judgments are 
 ('/ ) dismissing the application, (h) granting decree of cessio, 
 (V) refusing decree of cessio. 
 
 Meikle v. Wilson, 1884, 11 R. 867. 
 
 !)>S:;. Subsequent to the first diet, any judgment of the 
 Sheriff-Substitute which is final, or against which he grants 
 leave to appeal, may be brought under review, with the excep- 
 tion of a judgment granting, postponing, or refusing the 
 bankrupt a discharge, which, like the first deliverance, is by 
 ^t;ituie declared not to be subject to review. A "final" judg- 
 ment is not necessarily a judgment which ends the cessio
 
 CKSSIO. 431 
 
 process, but is a judgmeni which finally determines a cont( 
 question, as for instance 3 an interlocutor deciding whethi 
 claim is to be tanked, or is to bo refused a ranking, is a final 
 judgment in that '* cause,'' i.e., in the contested qu< 
 between the trustee and the creditor^ and so is an appealable 
 judgment. 
 
 Appendix, s. 3 (h), 27, 28. Henderson v. Grant, 1896, 23 I:. 
 
 44 & 45 Vict. c. 22. s. 5. 659. 
 
 7 Ed. VII. c. 51, s. 3 (J,). Broatch v. Pattison, 1898. 1 F. 
 
 2 & 3 do. V. c. 28, s. 2. 303. 
 
 Caird ,-. Paul, 1888, 15 R. 313. 
 
 984. Appeal to the Sheriff against the trustee's deliverances 
 on claims is not, as in bankruptcy, a separate process initiated 
 by each creditor. It is a part of the business at the second 
 meeting of the Sheriff with the debtor and his creditors. Ten 
 days at least before the second meeting, a list of the claims, 
 with the trustee's deliverances on each, must bo lodffed with 
 the Sheriff-clerk, and this is open to the inspection of the 
 debtor, and his creditors. The trustee, by post, also notifies 
 any creditor of the rejection of his claim. Objection to the 
 deliverances may be taken by the debtor, or by any creditor, 
 and it is competent, and very convenient, for the objector to 
 lodge with the Sheriff-clerk, within the ten days, a minute of 
 objections, but the statutory duty of an objector is merely, 
 three days before the second meeting, to give notice by post to 
 the trustee, and, if necessary, to the creditor interested, of 
 "the nature and particulars of the objection." If the debtor, 
 or any creditor, or the trustee, desires to lead evidence, the 
 Sheriff-clerk grants him a diligence to cite witnesses for the 
 second meeting, and at that meeting the objections are 
 summarily disposed of, with or without proof. 
 
 Act of Sederunt, 22nd Dec, 1882, s. 7-11. 
 
 985. When an appeal is competent, either from the Sheriff- 
 Substitute to the Sheriff, or from the Sheriff-Substitute or 
 
 Sheriff to the Court of Session, it follows the directions of the 
 Sheriff Courts Act, 1907. It must be taken within three 
 months in the form of a note of appeal, which, once noted, may 
 not be abandoned unless of consent and by leave of the Court. 
 
 Appendix, s. 27-28, Rules 86- 7 Ed. VII. c. 51, Sch. I., Rules 
 
 96. 86-96.
 
 CHAPTEE XVIII. 
 
 REMOVING. 
 
 1. Purpose. 
 
 986. The process of removing, which is peculiar to the 
 Sheriff Court, is to a great extent a diligence, rather than ;i 
 lawsuit, although it sometimes takes the shape of a formal 
 action, craving decree of removing. Its purpose is to prevent 
 the law of tacit relocation coming into operation as regards a 
 particular let. It is the legal process by which a landlord 
 formally rids himself of a tenant who has ceased to have a title 
 to occupy suhjeets in respect (a) that the period of his lease has 
 expired ; or (b) that, although the period has not yet elapsed, 
 circumstances have occurred which entitle th<> landlord to 
 determine the lease. A formal action of removing follows the 
 usual course of an ordinary action, hut a decree of removing 
 is brought under review, not by appeal, but by suspension. 
 A formal process, however, is not always necessary. 
 
 Appendix, s. 34-38, Rules 110- Johnston v. Thomson, 1877, 4 
 
 122. R. 868. 
 
 6 Geo. IV. c. 120, s. 44. Fletcher v. Davidson, 1874, 2 R. 
 
 7 Ed. VII. c. 51, s. 34-38, Sch. 71. 
 
 I., Rules 110-122. Campbell's Trustees v. O'Neill 
 
 (1910), 1911, S.C. 188. 
 
 987. The process of removing was originally regulated by 
 a statute of 1555. This, some two hundred years later, was 
 practically superseded by an Act of Sederunt of 1756, which 
 in turn was, to a large extent, but not entirely, superseded by 
 the removal clauses of the Sheriff Court Act of 1853. These 
 regulations, however, did not cover every kind of subject. The 
 Sheriff Court Acts, 1876-77, did not deal at all with this 
 subject, but the L853 enactments were considerably affected 
 by other legislation relating to removals. The Sheriff Courts 
 Act, 1907, contained a comprehensive set of modern process 
 directions for removings intended to be of universal applica-
 
 PURPOSE. i .33 
 
 tion, but, since then, Legislation has somewhal modified some 
 
 of these. 
 
 Appendix, B . 34-38, Rules 110 63 & 64 Vict. c. 50. 
 
 122. 7 Ed. VII. c. 51. s. 34-33, S'ch. 
 
 1555, c. 39. I.. Rules 110-112. 
 
 16 & 17 Vict. c. 80. s. 29-32. II. VII. c. 64, s. 17, 35. 
 
 46 & 47 Vict. c. 62. 2 Ceo. V. c. 28, s. 1, 3. 
 
 49 & 50 Vict. c. 50. Act of Sederunt, 14th Dec, 
 
 60 & 61 Vict. c. 22. 1756. 
 
 2. Notice. 
 
 988. It is a condition precedent of all removing proceed- 
 ings that notice to remove shall have been duly given. "What 
 that notice should be, and in what manner it should be given, 
 depends on circumstances. 
 
 989. The Sheriff Courts Act, 1907, did not make any dis- 
 tinction between agricultural and non-agricultural lands, but 
 divided heritable holdings into two broad classes, which may be 
 conveniently here referred to as large holdings and small 
 holdings, the first being lands (including houses with land 
 attached) exceeding 2 acres in extent, and the second being 
 lands (including houses with land attached) not exceeding 2 
 acres in extent. In the case of the large holding, the notice 
 is also affected by whether the lands are held (a) upon what we 
 may here term a long lease (i.e., for three years and upwards); 
 or (b) upon what we may term a short lease (i.e., for under 
 three years); or (c) without formal written lease, but upon a 
 tenancy terminable by notice on either side. 
 
 Appendix, s. 34 37. 7 Ed. VII. c. 51, s. 34-37. 
 
 990. The prescribed notice periods (in the absence of 
 express contract otherwise) were, under the Sheriff Courts 
 Act, 1907, (a) for a large holding held on a long lease, not 
 less than one year before the removal term; (!>) for a large 
 holdiug held on short lease or by tacit relocation, from year 
 to year, not less than six months; (c) for small holdings and 
 heritable subjects, such as mills, shootings, and fishings, and 
 generally for all heritable subjects (other than land exceeding 
 2 acres) let for a year or more, forty days; (d) for subjects 
 let for less than a year, but for a term exceeding four months, 
 forty days; (e) for short lets under four months, a period 
 equivalent to one-third of the period of let, the notice to be 
 
 28
 
 Ml REMOVING. 
 
 given in all cases, aoi less than the prescribed period before the 
 contraci removal term. It there are two removal terms, as in 
 the common case of a farm with a separate ish for houses and 
 lands, the notice musi be given timeously before the term 
 first in date 
 
 Appendix s. 34-38. Rulo 110. Campbell's Trustees v. O'Neill 
 
 49 & 50 Vict. c. 50. s. 4. (1910), 1911, S.C. 188. 
 
 7 Ed. VII. c. 51, s. 34 38, Sch. 
 I., Rule 110. 
 
 991. The three years period, which is the boundary line 
 between a long and a short lease recognised in the Sheriff 
 Comis Ad. 1907, bad been adopted from the Agricultural 
 Holdings Act of 1883. So also had the corresponding notice 
 periods of not less than one year and not less than six months 
 respectively. Bui the Agricultural Holdings Ad applied only 
 to agricultural, pastoral, and market garden holding's. These 
 notice provisions tin 1 1907 Sheriff Courts Ac! made applicable 
 to all kinds of holdings lei for over a year if they exceeded 2 
 acres in extent. The forty days adopted as the period of 
 Qotice for small holdings (not exceeding 2 acres) had long 
 been recognised as the appropriate period of legal warning. 
 Formerly an action of removing had to be served on the tenant 
 forty days before the removal term. 
 
 Appendix, Rule 110. 7 Ed. VII. c. 51, Sch". I.. Rule 
 
 46 & 47 Vict. c. 62, s. 28, 35. 110. 
 
 60 & 61 Vict, c 22, s. 3. 
 
 992. The Agricultural Holdings Act of 1908 defines a 
 holding as meaning " any piece of land held by a tenant which 
 
 is either wholly agricultural or wholly pastoral, or in part 
 "agricultural and as to the residue pastoral, or in Avhole or 
 "in pari cultivated as a market garden, and which is not let 
 "to the tenant during his continuance in any office appoint- 
 41 ment or employmeni held under the landlord." 
 
 8 Ed. VII. c. 64. s. 35. 
 
 993. Under that statute the notice required to bring the 
 tenancy of such a holding to an end is the same as that required 
 by the Sheriff Courts Act, 1907. in the case of a large holding, 
 namely. (</) when the lease is tor three years and upwards, not 
 less than one yen-, and not more than two years, before the
 
 NOTICE. 435 
 
 termination of the Lease; and (b) when the Lease is for Less? 
 than three years (and for at leasl one year), sis months. 
 
 7 Ed. VII. c. 51, s. 34. 8 Ed. VII. c. 64, s. 35. 
 
 904. A holding, us defined by the Agricultural Holdings 
 Act, 1908, accordingly now forms an exception to the classifica- 
 tion based iipon extent of the Sheriff Courts Act, L907. It 
 matters nothing whether such a holding 1 is under or over 2 
 acres in extent, for under the Agricultural Holdings Act the 
 extent of a holding is not a factor in determining notice. 
 
 8 Ed. VII. c. 64, s. 35. 
 
 995. Accordingly, the effect of the Agricultural Holdings 
 Act, 1908, upon Sheriff Court procedure is that, as regards 
 holdings falling within thai Act, the procedure in the Sheriff 
 Court is that applicable to what I have termed a large holding 
 (i.e., over 2 acres), whatever the actual extent of the holding 
 in itself may he. It will therefore always he necessary, in 
 initiating removal procedure, to consider in the first place 
 whether the subject of let falls within the definition of the 
 Agricultural Holdings Act, 1908. If it does not, the distinc- 
 tion hetween a large holding and a small holding still applies, 
 and notice will be given accordingly. 
 
 99G. Since the passing of the Sheriff Courts Act, 1907, 
 the House Letting and Rating (Scotland) Act, 1911, has dealt 
 with dwelling-houses within a royal, parliamentary, or police 
 burgh (or special district of a county, where it may he 
 adopted) in which the Act is in operation. This Act applies 
 to small dwelling-houses (a) of a rental not exceeding I' 10 
 if the population of tin- burgh exceeds 1000 and is under 
 20,000; (b) of a rental not exceeding £15 if the population 
 IS 'JO, 000 and under 50.000; and (c) of a rental not exceeding 
 £21 if the population is 50,000 or over. The Act does not 
 apply to (a) houses occupied by the owner; (b) inns and 
 hotels; (c) houses let along with land for agricultural, 
 pastoral, or horticultural purposes; (d) bouses let with a simp, 
 workshop, stable, or byre; (e) houses let on lease current 
 at the date of the Act. dining the currency of the lease. 
 
 1 & 2 Geo. V. c. 53, s. 1, 11. 
 997. This Act of 1011 adopts the principle of the Sheiiff
 
 136 REMOVING. 
 
 Court code, thai a notice to terminate is a condition precedent 
 io removal, and It also adopts the mode of giving notice 
 prescribed by the Sheriff Courts Act, 1907. 
 
 Appendix, s. 38, Rules 110 113. 1 & 2 Ceo. V. c. 53. s. 1. 
 
 7 Ed. VII. c. 51. s. 38, Rules 
 110-113. 
 
 998. The notice periods, however, have been altered as 
 regards tin's class of heritable subject. The Sheriff Courts 
 Act of 1907 required forty days' notice if the period of let 
 exceeded four months. The House Letting Act makes the 
 Imty days' notice applicable to lets exceeding three months. 
 It' the period of let is under three months, the notice period 
 is the same under both statutes, namely, one-third of the 
 period of let. But the House Letting Act fixes a definite 
 notice period of five days for all lets for a shorter period than 
 one month. It is to he kept in mind that days means clear 
 days. 
 
 Appendix, s. 38. 1 & 2 Geo. V. c. 53, s. 4. 
 
 7 Ed. VII. c. 51, s. 38. 
 
 999. Under the Sheriff Court code all notices terminate 
 with the ish ; but as regards these small dwelling-houses this 
 House Letting Act of 1911 introduced what is called a " lawful 
 "date" for the termination of a let — that is to say (except 
 in the case of lets for less than a month), "at noon on the 
 "twenty-eighth day of a month, or when that day is a Sunday, 
 " on the .Monday next following." Lets for a shorter period 
 than a month terminate always on a Monday at noon. 
 
 Appendix, s. 38. 1 & 2 Geo. V. c. 53, s. 3. 
 
 1000. In the case of subjects falling within the House 
 Letting Act, a notice to terminate a tenancy expires only at 
 noon on the day upon which the next payment of rent falls 
 due: or, if that is not a "lawful date," at noon on the lawful 
 date next following. 
 
 1 & 2 Geo. V. c. 53, s. 4. 
 
 1001. Where, however, rent is in arrear, the landlord is 
 entitled to give notice to terminate the let as and from the 
 expiry of forty-eight hours from the date of the notice; and, 
 in any process following upon such notice, the provision of the
 
 NOTICE. 4.37 
 
 House Lotting Act is ih;il the production of a certificate, 3igned 
 by or on behalf of the owner, thai the renl is al least seven 
 days in arrear, shall be 'prima facie evidence (hereof. It is a 
 somewhat startling aovelty in Sheriff Court practice that a 
 pursuer's ex parte statement should be prima facie evident e 
 on his <>\\ n behalf. 
 
 1 & 2 Geo. V. c. 53, s. 5. 
 
 100~. With these modifications, the removal sections and 
 rules of the Sheriff Courts Act, 1907, remain the code for the 
 Sheriff Court removal process. 
 
 Appendix, s. 34-38, Rules 110- 7 Ed. VII. c. 51, s. 34-38, Rules 
 
 122. 110-122. 
 
 1 & 2 Ceo. V. c. 53, s. 6. 
 
 3. When Action Unnecessary. 
 
 1003. In some cases, provided that due notice to remove 
 has been given, a formal action of removing is not required, 
 except perhaps where some question of title is likely to arise. 
 When lands exceeding 2 acres in extent are held upon a 
 probative lease for a year or longer, or held from year to 
 year, an extract of the lease is equivalent to a decree of 
 removing, and, along with a certificate of notice, and a letter 
 of authority to eject, signed by the lessor or his factor or his 
 law agent, is sufficient warrant to eject. But this applies 
 only to a probative lease. An informal lease which may give 
 a tenant an ex f<uic title to remain in possession, is not a 
 warrant in itself for ejectment without legal process. 
 
 Appendix, s. 34. 7 Ed. VII. e. 51. s. 34. 
 
 1004. The only person who can execute such a warrant is 
 a messenger-at-arms or a Sheriff-officer of the sheriffdom 
 within "which such lands or heritages ate situated, and eject- 
 ment is not competent after the lapse of six weeks from the 
 term of removal, or from the ish last in date, as the case 
 may be. The principle of ejectment in virtue of the lease 
 itself, without a formal decree of removing being interposed, 
 Mas introduced by the Sheriff Court- Act. L853, and is 
 followed in the Sheriff Courts Act, 1907. The officer's warrani 
 is the letter of authority and the extract Lease, which the 
 Sheriff Courts Act, 1907, declares to "have the same force
 
 438 REMOVING. 
 
 ''and effect as an extract decree of removing obtained in an 
 "ordinary action at the instance ol' the lessor or any one in 
 " liis right against the Lessee, or any party in possession"; 
 and the effect of a decree of removing under the Extracts 
 A<t of 1892 is that the tenant may be ejected after a charge 
 of forty-eight hours. The only remedy open to a tenant 
 aggrieved by the use of this process is suspension in the Court 
 of Session. 
 
 Appendix, s. 34, Rules 113-114. 7 Ed. VII. c. 51, s. 34, Sell. I., 
 
 16 & 17 Viet. c. 80, s. 30. Rules 113-114. 
 
 55 & 56 Viet. e. 17, s. 7 (4). 
 
 1005. Another situation (also introduced in 1853) in which 
 no formal action of removing is necessary, and in which the 
 only remedy is by way of suspension, is where the tenant of 
 lands exceeding 2 acres in extent has granted a letter of 
 removal. This must be holograph, or attested by at least 
 one witness, who should add his designation and address. 
 The letter of removal should be addressed to the proprietor 
 of the lands; but the property may have changed hands 
 during the currency of the lease, and, if the tenant is not 
 aware of the proprietors' name and address, it may suffice 
 to address and deliver the letter of removal to the proprietor's 
 factor or law agent, with whom the tenant has been accustomed 
 to transact. The Sheriff Courts Act, 1907, does not expressly 
 say to whom the letter is to be addressed (and neither did 
 the 1853 Act); but, as the proprietor's factor or law agent 
 is now expressly authorised to give a removal notice, he is 
 presumably also entitled and bound to receive one. In the 
 case of ejectment upon a letter of removal, the officer does 
 no1 require, as in the case of ejectment upon an extract lease, 
 to have also a special letter of authority from the proprietor 
 or his factor or law agent. The Letter of removal itself is 
 equivalent to a decree of removing, and is a sufficient warrant 
 tor ejection, to the same effect as an extract lease, that is, 
 provided the tenant has been charged upon at least forty-eight 
 hours' induche; that the warrant is executed within six weeks 
 ot the last removal date; and that the requisite statutory 
 notice to remove has been given. Even this notice is dispensed 
 with, if the letter of removal itself is dated within a year of 
 the removal term. 
 
 Appendix, s. 35, Form I. 7 Ed. VII. e. 51, s. 35, Sch. I., 
 
 16 & 17 Viet. c. 80, s. 31. Form I.
 
 RENT IN AJtflEAK. 139 
 
 1. Uk.ni in Areeab 
 
 1006. An action of removing accordingly has, in general, 
 ceased to be necessary (a) where the holding is over 'J acres 
 i,, extent, and is held under probative lease; or (6) where, 
 whatever the size of the holding, and whether held on lease or 
 not, tin- tenant has granted a letter of removal; but, although 
 ;m action i- not aecessary, it is still competent, and it may 
 sometimes be desirable to raise it, as, for instance, where there 
 may be a question of title There is one situation in winch an 
 action of removing may still be necessary. The Agricultural 
 Holdings Act, 1908, authorises the landlord to raise an action 
 of removing' when six months' rent is due and unpaid. The 
 effect of that enactment is to import into all leases ol 
 lands falling within that statute a provision thai non- 
 payment of six months' rent shall lie an irritancy, to be 
 declared in the landlord's option. This possible statutory 
 irritancy can be declared only in an action of removing, in 
 which, if it proceeds, the Sheriff may ultimately grant a 
 warrant to eject at the first term of Whitsunday or Martinmas, 
 but which the tenant has it in his power to prevent by at any 
 time before decree of removing' is pronounced (a) making- 
 payment of the arrears of rent; or (b) finding caution for the 
 arrears and one year's rent further. In such an action the 
 initial writ will narrate the fact of the rent being- in arrear, 
 and the extent to which it is in arrear, and crave decree of 
 removing-, and the procedure follows the normal course of an 
 action of removing-. 
 
 8 Ed. VII. c. 64, s. 17. 
 
 1007. This statutory special process of removing' during 
 the currency of a lease in respect of the tenant's failure to pay 
 his rent is applicable only (a) where the landlord had a right of 
 hypothec which has ceased and determined, and (6) to a holding 
 as defined in the Agricultural Holdings Act, 1908. 
 
 8 Ed. VII. c. 64, s. 17-35. 
 
 5. Holding without Lease. 
 
 100S. The Sheriff Courts Act, 1907, extends the removing 
 
 process, founded upon, and following upon, notice to quit, to 
 ; , phase o\' tenancy of which neither the old Ad <>| Sederunt
 
 440 REMOVING. 
 
 of 1756 nor the more modern directions of the statute of 1853 
 took cognisance. Where a large holding (i.e., over 2 acres) is 
 not held under a written lease, and the tenant has not given 
 a letter of removal, the tenancy may nevertheless be deter- 
 mined by a six months' statutory notice of termination, which 
 will ground an application lor a summary warrant of ejection. 
 So tar as the statutory direction noes it would appear to be 
 competent to determine the tenancy at any time, although 
 what is presumably intended is that it may be determined at 
 any Whitsunday or Martinmas, by giving notice at the previous 
 term. The intervention of the Court is necessary, but the 
 statutory direction is that the landlord may, after the six 
 months' notice has expired, " apply for and obtain a summary 
 ''warrant of ejection." If the Sheriff is satisfied that the 
 notice has been properly and timeously given, the Sheriff does 
 not appear to have a discretion to refuse a warrant. The 
 tenant's only remedy appears to be to suspend in the Court of 
 Session. 
 
 Appendix, s. 36. 7 Ed. VII. c. 51, s. 36. 
 
 6. Form of Notice. 
 
 1009. The direction of the statute as to the form of notice 
 is that it shall be, as nearly as may be, in the scheduled styles, 
 but these styles are very brief, and any form would appear to 
 be suitable which (a) clearly identifies the person giving the 
 notice; (h) clearly identifies the person to whom notice is given ; 
 (c) clearly identifies the subject of let; and (d) clearly sets 
 forth the removal term at which the notice is to take effect. 
 
 Appendix, Rules 111-112, Forms Scott v. Cook, 1886, 24 S.L.R. 
 
 It 1. 34. 
 
 7 Ed. VII. c. 51, Sch. I., s. 
 
 111-112. 
 
 1010. The mode in which the notice is directed to be com- 
 municated to the recipient is either by officer or by registered 
 postal letter. Giving notice to remove is not executing a 
 warrant, and the evidence of notice having been given is not 
 an execution of citation, but merely a certificate of notice. 
 The strict citation rules do not therefore apply to such notices, 
 although the statutory directions in regard to them are 
 generally to the same effect. The evident contemplation of the
 
 FORM OF NOTICE. 441 
 
 statute is that (a) if a messenger-at-arms or Sheriff-officer 
 the notice, he shall do so by going with it to the recipient, no! 
 by posting it; and (6) thai if it is given by posl il must be 
 signed by the person entitled to give the notice, or by his 
 factor, or by bis law agent. A certificate under the band of 
 (a) the officer who gave the notice, or (jb) the person who 
 it by post, is "sufficient evidence that notice bas been given," 
 that is to say, is ex facie evidence, for, if the Court afterwards 
 has to pronounce upon the proceedings following upon the 
 notice, the Court will, of course, also be entitled to take 
 cognisance of any irregularity in giving the notice, which is 
 sufficiently important to affect the validity of the subsequent 
 proceedings. 
 
 Appendix, Rules 113. 114. 7 Ed. VII. c. 51, Sch. [., Rules 
 
 113. 114. 
 
 7. Irritancy of Lease. 
 
 1011. Under the simplified practice in removings, a formal 
 action of removing in the Ordinary Court is practically now- 
 used only for the purpose of procuring the ejectment of a tenant 
 whose lease has come to an end, not by efflux of time, but by 
 the occurrence of an irritancy, that is to say, by an event 
 ha vine- occurred which, under the contract, entitles the 
 landlord to declare the lease at an end and to eject the tenant. 
 An action of removing, therefore, founded upon irritancy, 
 is an action of declarator, and a decree of removing authorising 
 ejectment cannot be granted till the irritancy has first been 
 declared. 
 
 Cassels v. Lamb, 1885, 12 It. 759 {per Lord Trayner). 
 
 1012. Formerly much doubt existed as to whether any 
 irritancy could competently be declared in the Sheriff Court, 
 and there were many conflicting decisions of the Courts upon 
 this subject. Of course, an action of declarator, broadly 
 speaking, was not competent in the Sheriff Court es< spl to 
 the limited extent recognised by the Sheriff Court Act, 1877 : 
 but, just as in the case of actions regarding heritable property 
 generally, the convenience and economy of utilising the local 
 Sheriff Court for the settlement of disputes anent removing 
 was so obvious as to sharpen ingenuity in finding exceptions 
 to the general rule. The broad question was whether, in the
 
 442 REMOVING. 
 
 circumstances of a particular case, the declaratory element 
 in the conclusion oJ the summons was subservient to the 
 removing element, or whether the removing elemeni was 
 subserviecl to the declaratory; or, as it was sometimes put, 
 
 whether the irritancy was a penal one, which must be declared 
 
 by the Court of Session before it could bo en forced in the 
 Sheriff Court: or was a conventional one, which was an 
 essential condition of the lease contract, upon which could 1).' 
 founded an action of removing in the Sheriff Court. All such 
 considerations have ceased to have any practical interest, for 
 there is, so far as regards process law, no distinction now 
 between one form of irritancy and another, and all doubts 
 a- to competency are set at rest by the express provisions of the 
 Sheriff Courts Act, 1907, which not only, in general terms, 
 extends the jurisdiction of the Sheriff Court to all actions of 
 declarator, but also, in the clause covering- actions relating to 
 heritage, expressly includes "all actions of declarator of 
 '" irritancy and removing, whether at the instance of a superior 
 " against a vassal, or of a landlord against a tenant." 
 
 Appendix, s. 5 (4). 7 Ed. VII. c. 51. s. 5 (4). 
 
 8. Irritancy of Feu. 
 
 1013. The jurisdiction of the Sheriff Court accordingly now 
 seems to cover every case of an irritancy of a feu, irrespective 
 of its size or value. Formerly an action of irritancy and 
 removing, by a superior against a feuar, was not competent 
 in the Sheriff Court in any circumstances. As regards a 
 lease, the Act of Sederunt of 1756 had made it competent for 
 the Sheriff to declare the irritancy as well as give decree id' 
 removing, where the tenant had irritated his lease by falling 
 in arrear with his rent, or neglected cultivation, lint this 
 did not apply to a feu. The Sheriff Court Act of 1853 extended 
 this jurisdiction to the case of a feu contract (which, as regards 
 this matt:'!', included a lease of over twenty-one years) if the 
 lands did not exceed £25 yearly value. If the vassal had 
 inn two years in arrear, the superior might apply in the Sheriff 
 Court for declarator of the irritancy and decree of removing. 
 The Sheriff Courts Act; 1007, removes the value limitation, 
 and makes competent in the Sheriff Court any action of 
 declarator and removing- competent to a superior against a
 
 IRRITANCY OF FEU. 1-43 
 
 vassal, and in effed assimilates the practice oi removing a 
 \ assa] to thai of removing a tenant . 
 
 Appendix, s. 5 (4). 16 & 17 Vict. c. 80, s. 32. 
 
 A.t of Sederunt, L4th Dec, 7 Ed. VII. c. 51, s. 5 (4). 
 
 1756, s. 4. 
 
 1014. The 1853 enactmenl contained a provision which, 
 
 nut nnw being necessary, has not been repeated in the I'Hi. 
 
 Sheriff Courts Act. It deferred the execution of the decree 
 
 of removing for four months. One object of this probably 
 
 was to a llcid the vassal an opportunity of purging the irritancy, 
 
 by making payment of the arrears of feu-duty, and i be expenses 
 
 of process, bui the main object was to give the vassal time, 
 
 if so advised, by action of declarator in the Court of Session, 
 
 to challenge the superior's title, which could not then be 
 
 challenged in the Sheriff Court, "except on points instantly 
 
 '• verified by the titles." Hut, under the modern practice, the 
 
 plea of no title, as well as any other plea in the cause, may be 
 
 competently taken in the Sheriff Court. Moreover, the Sheriff 
 
 Courts Act of 1907, in an action where a question of title is 
 
 raised, gives to either party the option of having' the cause 
 
 transferred to the Court of Session, where the value does not 
 
 exceed i'1000, or £50 yearly. 
 
 Appendix, s. 5 (4). Proviso 1, 2. 7 Ed. VII. c. 51, s. 5 (4), Pro- 
 
 16 & 17 Vict. c. 80, s. 32. viso 1, 2. 
 
 9. Declaratory Removing. 
 
 1015. An action of declarator of irritancy and removing 
 differs from a simple removing' process, in that it is not 
 restricted to the Sheriff Court. The Court of Session has 
 concurrent jurisdiction to entertain such an action, whether 
 arising upon the irritancy id' a lease, or of a feu contract ; 
 but, if the action is brought in the Sheriff Court, it must, like 
 all actions relating to heritable property, be raised in the 
 Court of the district within which the property lies. As this 
 is a peremptory statutory direction, it is not competent, even 
 of consent, for any other district Court to entertain the action. 
 But although the action must be raised in that distrid Court, 
 it may, of consent, or by the Sheriff, be transferred to another 
 more convenient forum. 
 
 Appendix, s. 5 (4), Proviso 1. 7 Ed. VII. c. 51, s. 5 (4). Pro- 
 
 Rules 20, 21. viso 1, Sch. L, Rules 20, 21
 
 444 REMOVING. 
 
 L016. In an action oJ this sort, it is not necessary, by 
 separate proceeding, to constitute jurisdiction against any 
 defender, even it be be a foreigner, because the Sheriff Courts 
 Act, L907, expressly makes all parties liable to the jurisdiction 
 of i be ( 'niii t of t be district within which the property is situated. 
 It any defender is furth of Scotland, he will be served in the 
 usual way. edictally. This provision is of some consequence 
 in an action of declarator and removing by a superior against 
 a vassal, because of the new requirement of the Sheriff Courts 
 Act, 1907, that there shall be called as defenders (a) the last 
 entered vassal, (b) heritable creditors and holders of postponed 
 ground burdens. These are to be ascertained from a search, 
 to be ordered by the pursuer, and the expense of which is to 
 form part of the expenses of process, but the search need not 
 go hack more than twenty years from the date of raising- the 
 action. 
 
 Appendix, s. 5 (4). Rule 110. 7 Ed. VII. c. 51. s. 5 (4), Sch. 
 
 I., Rule 110. 
 
 1017 An action of declarator of irritancy and removing 
 differs ;4so from a simple removing process, in that it is 
 subject to review, not by suspension, but by appeal in the 
 same manner as any other ordinary action competently raised 
 in the Sheriff Court. Such an action is an ordinary action, 
 and the initial writ should narrate the pursuer's title and the 
 failure of contract condition on the part of the defender, which 
 is founded upon as constituting' an irritancy of his lease or feu 
 contract, and crave decree of removing, and warrant to eject. 
 The fact that, by payment of a certain amount of money, the 
 irritancy may possibly be purged, does not give the action the 
 character of a money claim. 
 
 Appendix, s. 5 (4). 7 Ed. VII. c. 51. s. 5 (4). 
 
 1018. There is known to the law, although it seldom occurs 
 in practice, a statutory special irritancy which may ground an 
 action of removing. This was introduced by the Act of 
 Sederunt of 1756, and it still subsists, there being nothing 
 inconsistent with it in the Sheriff Courts Act of 1907, or in 
 any of the other statutes which have affected the removing- 
 process. That is the case of a tenant who runs a full year in 
 arrear of rent, or who "shall desert his possession and leave 
 " it unlaboured at the usual time of labouring-." In that
 
 DKCLAUATORY REMOVING. Mo 
 
 event, the Landlord is entitled to apply to the Sheriff, to ordain 
 the tenant to find caution Bor the arrears and for five following 
 crops, or for the remainder of the lease if it has Less than 
 five years to run, ami, failing lii> doing so, for wan-ant to 
 eject him, as it' his Lease had determined, and he had been duly 
 warned away. In such an application the initial writ should 
 narrate the particular failure to cultivate complained of, and 
 the crave will be for an order upon the defender to find caution 
 for the due payment of arrears of rent, if any, and for five 
 succeeding years' rent, it' so many remain of the Lease, and. 
 failing caution being found, for decree of removing and 
 warrant to eject. When it was not competent to bring an 
 action of declarator of irritancy in the Sheriff Court, this 
 statutory process was of some importance, but now that an 
 action of declarator is competent in the Sheriff Court, the com- 
 petency of adopting this ancient remedy is not any great 
 privilege, the cultivation of a farm being in the common ease a 
 contract obligation, enforceable in the Sheriff Court by an 
 action of implement. 
 
 Act of Sederunt, 14th Dec, Urquhart v M'Kenzie, 1824, 3 
 
 1756, s. 5. S. 56. 
 
 10. Cautiox. 
 
 1019. An action of removing differs from actions in general, 
 and forms an exception in process law, in respect that the 
 defender may be required to find caution for violent profit-. 
 so called on the theory that loss and damage to the landlord 
 results from a tenant violently retaining- possession of subjects 
 which he has no title to occupy. In general the Sheriff 
 has no power to make finding caution a condition of litigating. 
 But the law recognises an exception in the case of a removing 
 process. The question arises only when there is a formal 
 action of removing, to which defences an- stated. The old 
 statute of 1555 introduced the condition that a party defending 
 must find caution. The Acts of Sederunt of 1756 and 1839 
 recognised this condition; the 1853 and subsequent Sheriff 
 Court statutes left this matter alone; but the Sheriff Courts 
 Act, 1907, has, so far, relaxed a rule, the rigidity of which 
 sometimes caused great hardship. It is not now imperative. 
 but optional, to require a defender to find caution whether in 
 an ordinary or a summary removing process ; but in the
 
 Hi; REMOVING. 
 
 ordinary action the Sheriff may simply refrain from ordering 
 caution, whilst in the summary removing action the Sheriff 
 must expressly dispense with caution, the reason being that 
 caution being dispensed with in a defended summary removing 
 lias the same effect as caution being found. The cause then 
 becomes an ordinary action of removing. 
 
 Appendix, Rules 110, 121, 122. Act of Sederunt, 10th July, 
 
 At 1555, c. 39. 1839. 
 
 7 Ed VII c. 51, Sch. I., Rules Beresford's Trustees v. Gar- 
 
 110. 121. 122. diner, 1877. 4 R. 1091. 
 
 AH of Sederunt, 14th Dec, Inglis' Trustees v. Macpherson 
 
 1756. (1909). 1910, S.C. 46. 
 
 11. Summary Removing. 
 
 1020. Prior to 1838 there was only one form of action of 
 removing, applicable to all cases. The statute of that year 
 introduced the process of summary removing, so-called, but 
 which might be more accurately termed summary ejectment. 
 This the Sheriff Courts Act of 1907 has preserved, with some 
 extension of its scope, and some slight alteration of its pro- 
 cedure. Originally this process was applicable only when the 
 rent did not exceed £30. But the element of rental has been 
 eliminated, and it is now competent in any case where the 
 period of let is less than a year. It is a process appropriate 
 to every description of heritable subject. As in all removings, 
 notice to quit is a condition precedent. 
 
 Appendix, s. 38. Rules 115-122. 7 Ed. VII. c. 51, s. 38, Sch. I., 
 
 1 & 2 Vict. c. 119, s. 8. Rules 115-122. 
 
 1021. A summary removing is one of the exceptions 
 to the genera] rule of the Sheriff Courts Acts, 1907-1913, thai 
 every action must be commenced by an initial writ, in the form 
 provided by the 1913 Act. The form of summary complaint 
 which was introduced in L838, and had been found convenient 
 in practice, has been practically preserved in the schedule of 
 the 1007 Aci. It briefly narrates the tenancy, the expiration 
 thereof, and the tenant's refusal to remove, and craves warrant 
 to eject him. 
 
 Appendix, Rules 1, 115. Form 7 Ed. VII. c. 51, s. 38, Sch. I., 
 
 K. Rules 1. 115, Form K. 
 
 1 & 2 Vict. c. 119, s. 38, Sch. 
 A (1).
 
 SUMMARY REMOVING. 117 
 
 1022. The pursuer in a Bummary removing need qo1 
 necessarily be the proprietor of the heritable subjects. The 
 acti.m may be sued "at the instance of a proprietor, or his 
 " factor, or any person by law authorised to pursue a process 
 "of removing." A.8 "tenant" and "lease" include sub- 
 tenant and sub-lease, a removing process thus appears to be 
 competent at the instance of a principal tenanl against a 
 sub-tenant. So also it may be ai the instance of a heritable 
 creditor in possession. Bui an heir must complete a title 
 before lie can pursue a removing process, or operate a decree 
 of removing by his predecessor. Short-let contracts are 
 frequently made in the name of a factor, and the new pro- 
 vision that a factor may pursue a summary removing is a 
 convenient arrangement. 
 
 Appendix, Rule 115. Mackenzie v. Gilanders, 8th 
 
 7 Ed. VII. c. 51, Sch. I., Rule Dec, 1853, 26 Jur. 74. 
 
 115. Inglis' Trusties v. Macpherson 
 
 Forsyth v. Aird, 1853. 16 D. (1909), 1910, S.C. 46. 
 
 197. 
 
 1023. The Sheriff Courts Act, 1907, did not make any 
 alteration upon the practice in regard to service by an officer 
 of a summary removing complaint. The practice of serving 
 such a complaint without a witness has not been altered. The 
 "•eneral citation direction of the 1907 statute no doubt is that 
 "it a warrant is executed by an officer, one witness shall be 
 "sufficient for the execution of citation, and the execution 
 "shall be signed by the officer and the witness." lint that 
 does not apply to a summary removing process, for the 
 proceedings in that process are directed to be conducted as 
 are proceedings under the Small Debt Acts. The proceedings 
 commence with the issue of the complaint, and include the 
 service of it, and the Small Dcht Act of L837 expressly enacts 
 that "citations given by an officer alone without witnesses, 
 "and executions thereof subscribed by such officer, shall be 
 "good and effectual to all intents and purposes." 
 
 Appendix, Rules 9, 119. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 1 Vict. c. 41, s. 3. 9. 119. 
 
 L024. The assimilation of a summary removing process toa 
 Small Debt process is not, however, complete, for the limited 
 right of appeal to the Justiciary Court, which is accorded in 
 
 a Small Deht action, is not extended to a summary removing,
 
 448 REMOVING. 
 
 the proceedings in which the statute expressly declares " shall 
 " qoI be subjecl to review," bul this niust be read along with 
 the subsequenl provision of the Act, thai when answers have 
 been put in the cause heroines ;m ordinary action of removing. 
 The decree is, in form, ;i warrant for ejection, either instantly, 
 or after a specified Lapse of time, or after a charge on a 
 specified inducia?. The Sheriff Courts Acts do not specify 
 any induciae for ejectment; but as, within three days, the 
 Sheriff may recall his warrant to eject, ii appears to have 
 been contemplated thai a tenant would get at least three days' 
 grace. The House Letting Act of 1911, however, expressly 
 provides that, unless on cause shown, and upon caution or 
 consignation, delay is not to be granted beyond forty-eight 
 hours. 
 
 Appendix. Rule 117-119, Form 1 & 2 Geo. V. c. 53, s. 6 (2). 
 
 L. Fletcher v. Davidson, 1874, 2 R. 
 
 6 Geo. IV. c 120, s. 44. 71. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 119, Form L. 
 
 1025. In a summary removing the defender may appear 
 personally, or by a member of his family, or such other person 
 as the Sheriff shall allow, or by a law agent. If by 
 inadvertence a defender fail to appear, the Sheriff Courts 
 Act, 1907, permits him, within three days, to explain his 
 absence, and, if the Sheriff is satisfied that he had a reasonable 
 excuse, lie " may re-hear the cause, and, if decree has been 
 "granted and not implemented, may re-call the decree upon 
 " such conditions as to expenses and otherwise as the Sheriff 
 " shall deem reasonable." The statute gives no direction as 
 to how this is to be done, but the intention apparently is that, 
 within the three days, a verbal explanation may be made at 
 the bar by or for the defender, and that, if this is ex facie 
 reasonable, the case shall be put to a roll, and the pursuer 
 notified of the diet for re-hearing. 
 
 Appendix, Rule 117. 1 Vict. c. 41, s. 15. 
 
 1020. When the tenant puts in answers, the cause becomes 
 an ordinary action of removing, subject to review in common 
 form. But, unless the defence can be instantly verified, the 
 Sheriff may order caution for violent profits. Formerly it 
 was imperative that a defender find caution, which occasioned 
 much hardship, but under the recent statute it is now in the
 
 SUMMARY REMOVING :. 149 
 
 Sheriff's discretion to dispense with caution. To enable the 
 
 cause (o proceed as an ordinary action, caution must either he 
 ordered and found, or the finding of caution must be expressly 
 dispensed with. 
 
 Appendix, Rules 119 122. Inglis' Trustees v. Macpherson 
 
 7 Ed. VII. c. 51, Sch. I., Rules (1909), 1910, S.C. 46. 
 
 121, 122. 
 
 12. Occupier Without Title. 
 
 1027. The process of summary removing is competent only 
 where there has been a let, written or verbal. It is not 
 appropriate where the relationship of landlord and tenant has 
 never existed, as, for instance, in the case of a squatter. 
 Wherever the occupier is, in the eye of the law, a tenant he 
 is subject to a process of removing. But if a person is not a 
 tenant, but is occupying lands without any title, an action of 
 removing is not the appropriate remedy. He must be pro- 
 ceeded against by formal action, the initial writ in which 
 will narrate the fact of occupancy, the absence of title, and 
 the refusal to leave. The crave will be for warrant to eject 
 defender, and for interdict against his resuming occupancy. 
 It is somewhat anomalous, no doubt, that a tenant who 
 entered upon a title is subject to a summary process like 
 removing, whilst a person who never had any occupancy 
 title must be dealt with in an ordinary action, but there 
 seems no other remedy, for the process of removing does not 
 apply to a squatter. In such an action no doubt the Court 
 might shorten the inducia? and generally expedite the case, 
 but the defender has right of appeal to the Sheriff, and to the 
 Court of Session if so disposed, and might protract a litigation 
 considerably, meanwhile sitting in the premises. Under the 
 Heritable Securities Act, 1894, a proprietor in occupancy is, 
 as in a question with his heritable creditor, " deemed to be 
 " an occupant without title." 
 57 & 58 Vict. c. 44, s. 5. 
 
 29
 
 CHAPTER XIX. 
 SEQUESTRATION FOR RENT. 
 
 1. Purpose. 
 
 1028. Proceeding's in a process of sequestration for rent 
 are, like removings, more of the nature of diligence than of 
 litigation. Like a removing also, a process of sequestration 
 for rent is competent only in the Sheriff Court. But a 
 sequestration process takes the form of a Court action, and 
 decree must precede diligence, whether the subjects are held 
 under formal lease or otherwise. This process must he raised 
 in the Sheriff Court of the district where the subject of let is 
 situated. 
 
 Appendix, s. 5, Proviso 1. 7 Ed. VII. c. 51, s. 5, Proviso 1. 
 
 1029. The purpose of this process is to make available to 
 a landlord in security, or in satisfaction of rent, moveables 
 over which the landlord has a right of hypothec. Prior to 
 1880, the scope of this process was much wider, for every 
 landlord had a hypothec for rent ; but the Hypothec Abolition 
 (Scotland) Act, 1880, abolished that right as regards rent 
 (including rent of buildings thereon) of lands exceeding 2 
 acres in extent let for agriculture or pasture. In the case of 
 some kinds of holdings, other remedies for non-payment of 
 rent are now also available to a landlord, and the process of 
 sequestration for rent is not now frequently resorted to for the 
 recovery of rent of agricultural subjects. Where it is used, 
 it must be exercised within three months after the last term 
 of payment, for the crop of any one year is hypothecated only 
 for the rent of that year, and neither stock nor crop can be 
 sequestrated after the lapse of three months. 
 
 43 Vict. c. 12, s. 1. 8 Ed. VII. c. 64, s. 27. 
 
 1030. The landlord's ancient right of hypothec has not been 
 affected as regards subjects other than agricultural, and the
 
 PURPOSK. 451 
 
 process of sequestration is largely used for the recovery of 
 rents of urban subjects. The hypothec over household 
 furniture, however, falls three months after the las) term, 
 and sequestration is inept unless brought within that period. 
 It is competent for a landlord to sequestrate either in security 
 or for payment, and in the mosl common form of process there 
 is a craving for both. In neither case is there any notice given 
 to the tenant. In the general case, prior notice would defeat 
 the sequestration process, for notice would probably result in 
 the officer finding nothing to sequestrate. Upon presentation 
 of an application for sequestration, in the first deliverance the 
 Sheriff may, and in practice invariably does, unless a caveat has 
 been lodged, "sequestrate the effects of a tenant, and grant 
 " warrant to inventory and secure the same." Such a wan am 
 includes authority to open shut and lockfast places. 
 
 Appendix, Rule 105. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 105. 
 
 2. Action. 
 
 1031. Where there is power to sub-let, whether express or 
 implied, a principal tenant may pursue an action of sequestra- 
 tion against his sub-tenant; but this process is not available 
 to a heritable creditor, unless he is in actual possession of the 
 subjects, or has obtained a decree of maills and duties. Joint 
 proprietors may sue jointly, or each may sue a sequestration 
 process for his own share of the rent. 
 
 Stewart v. Wand, 1842, 4 D. Forsyth v. Aird, 1853, 16 D. 197. 
 
 622. Bell v. Gunn, 1859, 12 D. 1C03. 
 
 1032. A crave for sequestration in security is relevant only 
 if supported by a statement in the initial writ that the hypothec 
 right is being endangered, and in what way, as, for instance, 
 that the tenant has become bankrupt, or is vergens ad inopiam, 
 or is selling or removing the effects which are subject to 
 hypothec, or that a past due term's rent is unpaid. Hut the 
 granting of the first deliverance sequestrating the tenant's 
 effects will not be delayed pending inquiry. An application 
 for sequestration in security is a precautionary measure taken 
 at the landlord's risk, and at his expense if the rent is duly 
 paid when due. If the landlord makes a wrongful use of his 
 privilege, he may be afterwards liable in damages, but the
 
 t52 SEQUESTRATION YOU RENT. 
 
 ( !ourt cannot refuse a deliverance if the crave for it is relevantly 
 Laid. 
 
 Gordon v. Suttie, 1836, 14 S. Donald v. Leitch, 1886, 13 R. 
 
 954 790. 
 
 Oswald r. Graeme, 1851, 13 D. Nicol v. Mercer, 1902, 10 S.L.T. 
 
 1229 I 42 - 
 
 Watson v. M'Culloch, 1878, 5 Kilburn v. Wilson, 1903, 19 
 
 R. 843. S.C.R. 249. 
 
 1033. The first deliverance sequestrating the effects and 
 granting warrant to inventory must be signed by the Sheriff, 
 as it is more than a service warrant, and it authorises the 
 opening of shut and lockfast places. The sequestration of 
 itself has no effect in passing the property in the articles 
 inventoried. It merely identifies the articles as under seques- 
 tra! ion. The inventory is conclusive of what is sequestrated. 
 If the articles sequestrated are of a perishable nature, the 
 Sheriff may order them to be sold and the proceeds consigned. 
 A tenant who interferes with articles so sequestrated may 
 become liable to fine or imprisonment for breach of sequestra- 
 tion. A tenant who thus defeats a sequestration, and others 
 who knowingly assist him, may also be liable in damages to 
 the landlord, measured by the consequent loss of rent. 
 
 Appendix, Rules 105, 106. Horsburgh v. Morton, 1825, 3 S. 
 
 7 Ed. VII. c. 51, Sch. I., Rule.; 596. 
 
 105 106 Lamb v. Grant, 1874, 11 S.L.R. 
 
 672. 
 
 3. Breach. 
 
 1034. Breach of sequestration, like breach of interdict, is 
 contempt of Court, for the sequestrated articles, when they 
 have been inventoried by an officer of Court, are theoretically 
 in the custody of the Court. "After sequestration a tenant 
 "can have no intromission with the sequestrated goods, except 
 " by judicial authority." The complaint takes the form 
 of a summary application at the instance of the landlord, the 
 initial writ in which process will narrate the sequestration, 
 and the alleged breach of it, and crave the Court to grant 
 warrant for the apprehension of the defender and his committal 
 to prison until he restore the articles or find caution for the 
 rent. The landlord must obtain the concurrence of the 
 procurator-fiscal. If the defender do not appear, wilful breach 
 of sequestration is presumed, and decree and warrant of 
 imprisonment will follow, but the defender may appear and
 
 BREACH. 453 
 
 show that, in the circumstances, his action was not wilful 
 
 breach of sequestration, in which case imprisonment is not 
 
 usually enforced. 
 
 Miller v. Paterson, 1831, 9 S. Kippen v. Oppenhc-im, 1846, 8 
 
 972 {per Lord Corehouse). D. 957. 
 
 4. Warrant to Carry Back. 
 
 1035. When articles subject to a landlord's hypothec have 
 
 been removed from the premises before the landlord 1ms got a 
 
 deliverance sequestrating them, and if their situation is known, 
 
 the first deliverance may include a warrant to bring them back 
 
 to the premises, there to be sequestrated, for articles subject 
 
 to hypothec cannot validly be sequestrated and inventoried 
 
 elsewhere than upon the premises let. To obtain such a 
 
 warrant to carry back after the first deliverance, the landlord 
 
 puts in, or, more commonly, endorses upon the initial writ, a 
 
 minute enumerating the articles removed, and stating where 
 
 they are, and craving warrant to bring them back. If they 
 
 are in another place in the custody of the defender himself, 
 
 warrant may be granted de piano, but whilst in many cases 
 
 notice to the defender might simply defeat the object of the 
 
 warrant, yet a pursuer who acts upon such a warrant, without 
 
 notice to the defender, does so at his own risk if it afterwards 
 
 appears that the warrant to carry back was taken without 
 
 due cause. If the articles are in a third person's custody. 
 
 the common practice is to fix a diet on a short induchr. to 
 
 order intimation of the minute to the tenant, and to the third 
 
 party custodier, to hear parties, and, if necessary, hear 
 
 evidence, before granting or refusing a warrant to carry 
 
 back. 
 
 Johnston v. Young, 1890, 18 R. M'Lauchlin v. Reilly, 1892, 20 R. 
 
 (J.C.) 6. 41. 
 
 Gray r. Weir, 1891, 19 R. 25. Jack v. Black, 1911, S.C. 691. 
 
 1036. To justify a warrant to tarry back being granted, 
 the articles must be still subject to the landlord's hypothec. 
 If they have obviously not fallen within the hypothec, they 
 cannot be carried back. A landlord cannot use the process of 
 sequestration in security, for instance, to settle a question of 
 disputed tenancy. Thus, in the case which not infrequently 
 occurs, where a tenant has occupied a dwelling-house for a 
 year ending at a Whitsunda}- term, and he has at that term
 
 454 SEQUESTRATION FOR RENT. 
 
 duly paid his rent, and before 28th May has removed his 
 furniture to another house, the landlord of the first house, 
 although lie may allege that the tenant had re-taken that house 
 for another year, is not entitled to seek a warrant to carry 
 back the furniture from the second house, to sequestrate it 
 there, in security of the rent of the alleged second year's let, 
 t,.i the furniture, not having been in the house after Whitsun- 
 day, never was subject to hypothec for rent accruing after 
 Whitsunday. The landlord may, or may not, have a good 
 personal action for rent after Whitsunday, and he may, or 
 may not, be able to establish grounds for asking that the 
 tenant be ordained to plenish the first house, but he cannot 
 seek a warrant to carry back furniture which never fell within 
 his hypothec, it having been removed before the alleged tenancy 
 period commenced. 
 
 5. Deceee. 
 
 1037. Decree in a sequestration process can never be granted 
 till the term of payment of the rent has passed. In an action 
 of sequestration in security only, therefore, whether defended 
 or not, the case is generally sent to the roll of a Court day after 
 the term, when, if the rent has not been paid, and the action is 
 defended, the case will proceed in the same manner as any 
 other defended action. But in an action of sequestration for 
 past due rent only, or in the most common form of action, 
 which combines a crave for sequestration and warrant of sale 
 for past due rent, with a crave also for sequestration in security 
 of current rent, when appearance is entered the action follows 
 the usual procedure applicable to a defended action. In either 
 case, to ensure that the sequestrated effects will be available 
 when wanted, the Sheriff may, at the first calling, or subse- 
 quently, appoint a person to take charge of the effects, or 
 require the tenant to find caution that they shall be made 
 furthcoming. 
 
 Appendix, Rule 109. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 109 
 
 1038. If the action is undefended, or if the defence is 
 repelled, the Sheriff grants warrant to sell so much of the 
 sequestrated effects as will satisfy the sum decerned for, 
 interest and expenses. The sale is carried out at the sight of an 
 officer of Court, or of such other person as the Court may
 
 DECREE. i:.' 
 
 appoint, who is usually a licensed auctioneer, and aftei such 
 mt i mat ion as the Court orders, winch is usually by newspaper 
 advertisement and by handbills. The sale must be reported 
 by the pursuer to the Sheriff-clerk within fourteen day-, and 
 the roup rolls and the state of debt lodged. J I there is a 
 surplus, that should be consigned with the Sheriff-clerk, and 
 the defender may move to uplift it. If there is a shortcome, 
 " the Sheriff may give decree against the defender for any 
 " balance remaining due." 
 
 Appendix, Rules 106-108. Galloway v. M'Pherson, 1830, 8 
 
 7 Ed. VII. c. 51, Sch. I., Rules S. 539. 
 
 106-108. 
 
 1039. Sequestration for rent is competent in the Small 
 Debt Court, if the whole rent in respect of which sequestration 
 is asked does not exceed £20. Originally the Small Debt 
 process covered only rent past due, but the Sheriff Courts Act, 
 1907 (repeating a similar provision in the Act of 1853), enacts 
 that "the provisions of the Small Debt Acts for sequestration 
 "for rent shall extend to all sequestrations applied for currente 
 " termino or in security." 
 
 Appendix, s. 43. 7 Ed. VII. c. 51, s. 43. 
 
 1 Vict. c. 41, s. 5. 
 
 1040. Whether the proceedings are in the Ordinary or in 
 the Small Debt Court, it is a statutory requisite of every 
 sequestration for rent that it be recorded in the special register 
 kept by the Sheriff-clerk under the Hypothec Amendment 
 Act of 1867. 
 
 30 & 31 Vict, c. 42, s. 7. 
 
 1041. A party who is sued in a process of sequestration 
 may enter appearance in the usual way, if he so elect, but he 
 need not necessarily do so, for at any time after service of the 
 initial writ he is entitled, upon caution for or consignation of 
 the rent, to have the sequestration recalled. If the defender 
 desires to have this done before the first diet of compearance, 
 he would require to present a separate writ, narrating the 
 sequestration process and craving recall, in the same manner 
 as an application for recall of arrestments, and fpr a similar 
 reason, that the sequestration writ is not at that stage yet 
 before the Court, and there is as yet no pending process in 
 which the defender can lodge a minute or make a motion.
 
 456 SEQUESTRATION FOR RENT. 
 
 In the general case, it is not worth while for a defender to 
 go to this trouble, and his more convenient course is to await 
 the first calling, and then to tender caution, or make con- 
 Bignation, and to move for recall of the sequestration. If 
 sequestration is recalled on general caution, and decree is 
 ultimately granted, the cautioner as well as the tenant is 
 liable both for the rent and the expenses of process. 
 
 Clark v. Duncan, 1833, 12 S. Alexander v. Campbell's Trus- 
 
 158. tees, 1903, 5 F. 634. 
 
 5. Third Party. 
 
 1042. It often happens that a party who is not called as 
 a defender may have an interest in a sequestration process, 
 as being the owner of effects within the premises let, and 
 ostensibly falling within the landlord's hypothec, but which 
 are not really the property of the tenant. An officer making 
 an inventory under a sequestration warrant is entitled to 
 include all the effects which he finds upon the premises, and 
 mere intimation by a third party to the officer of a claim to 
 the ownership of effects within the premises has no effect in 
 the sequestration process. If a third party desires to vindicate 
 his alleged proprietary interest, he may intervene in the 
 process and ask the Court to exclude from the warrant of 
 sale the articles in question ; but if necessary (as, for instance, 
 if he desires a formal appealable judgment upon the question 
 of the ownership of such effects, or as to whether they fall 
 within the hypothec) his course is to raise an action of 
 interdict, narrating in the initial writ the inclusion of such 
 effects in the sequestration inventory and the claimant's title 
 to the ownership thereof, and craving interdict against their 
 being sold. 
 
 Lindsay r. Earl of Wemyss, M'lntosh v. Potts, 1905, 7 F. 
 
 1872, 10 M. 708. 765. 
 
 Hoare v. Alackay, 1905, 13 
 
 S.L.T. 588.
 
 CHAPTER XX. 
 
 SERVICE OF HEIRS. 
 
 1. Jurisdiction. 
 
 1043. Judicial procedure for obtaining a formal title upon 
 succession to heritable property is one of the matters in which 
 the Court of Session has not concurrent jurisdiction with the 
 Sheriff Court. The local Sheriff's jurisdiction in this matter 
 is, however, concurrent with that of the Sheriff of Chancery, 
 and in some cases the jurisdiction of the Sheriff of Chancery 
 is privative. Originally the procedure was by brieve issued 
 from Chancery, which was addressed to the Sheriff as Judge 
 Ordinary of the territory within which the heritable property 
 lay, and directed him to make trial by jury of the issues 
 stated in the brieve. When the cumbrous form of procedure 
 bv brieve, which at one time was the form of most processes 
 in the Sheriff Court, was generally superseded by the summons, 
 introduced upon the institution of the Court of Session, the 
 practice of procedure by brieve of inquest was in this particu- 
 lar matter maintained till 1847, when the Service of Heirs 
 Act abolished it, and substituted the simpler form of 
 application by petition. This process is now regulated by 
 the Conveyancing Acts of 1868 and 18T4. 
 
 10 & 11 Vict. c. 47. Ersk. IV., 1, 3. 
 
 31 & 32 Vict. c. 101, s. 27-37. 
 
 1044. Under the old practice, when the application was 
 for general service, the brieve might be directed to any 
 Sheriff, but if the application was for special service, it was 
 directed to the Sheriff of the county within which the lands 
 lay. Inquiry was necessary in both cases, but in the general 
 service it was limited to the matter of the propinquity of the 
 applicant to the deceased landowner. In the case of special 
 service, the inquiry embraced also the particulars as to the 
 locality, extent, and title of the lands. The answers of the 
 jury the Sheriff returned to Chancery to be registered, and
 
 458 SERYICE OF HEIRS. 
 
 then a Chancery extract formed the heirs' evidence of title to 
 the lands. In modern practice an extract decree of service 
 granted by Hie Sheriff, recorded and extracted in the manner 
 directed by the Titles to Land Consolidation Act, 1868, has 
 " the full legal effect of a service duly retoured to Chancery, 
 " and shall be equivalent to the retour of a service under the 
 " brieve of inquest according- to the law and practice existing 
 "prior to the 15th day of November, 1847." 
 32 & 33 Vict. c. 116. s. 37. 
 
 1045. The office of Sheriff of Chancery was created by the 
 Service of Heirs Act of 1847. The qualification for this office 
 is the same as that for the Sheriff of a county, but his 
 jurisdiction is limited to " questions of, and relating to, the 
 " service of heirs." He holds a Court at Edinburgh, if a 
 formal Court sitting is required, but opposed service is not 
 frequent, and in practice the proceedings are mainly conducted 
 in the Chancery Office. 
 
 10 & 11 Vict. c. 47, s. 27, 29, 30, 32. 
 
 2. Form of Application. 
 
 1046. An application relating to service of heirs is a civil 
 proceeding in the Ordinary Sheriff Court, and is therefore an 
 " action," but it forms an exception to the general rnle of 
 the Sheriff Courts Acts, 1907-1918, that every action is to 
 commence by an initial writ. The Sheriff Courts Act, 1907, 
 by expressly reserving the Conveyancing Acts of 1868 and 
 1874, set at rest a doubt which had existed for over thirty 
 years as to whether the proper form of process is that of the 
 Conveyancing Acts, or that of the Sheriff Courts Acts. 
 
 Appendix. Rule 1. 2 & 3 Geo. V. c. 28. 
 
 7 Ed. VII. c. 51, Sch. I., Rule 
 1. 
 
 1047. The form, therefore, in which an heir now applies 
 to the Court for service is by petition in the form prescribed 
 by the conveyancing statutes, addressed to the appropriate 
 local Sheriff or to the Sheriff of Chancery, as the case may be, 
 setting forth the facts and circumstances in narrative form, 
 and concluding with a prayer to serve the petitioner heir. 
 The petition is to be signed " by the petitioner or his manda-
 
 FOKM OF APPLICATION. 159 
 
 " tory," so that a law agent who signs for a petitioner ought 
 to obtain a special mandate. 
 
 31 & 32 Vict. c. 101, s. 27-42. 37 & 38 Vict. c. 94, s. 10, 43. 
 
 Sch. P, Q, and K. Sch. E. 
 
 3. Court. 
 
 1048. In the ease of a general service, the petition is 
 presented in the Sheriff Court of the county, or district of a 
 county, within which the deceased proprietor of the heritable 
 subjects had at the time of his death his ordinary or principal 
 domicile; or, in the option of the petitioner, it may be 
 presented to the Sheriff of Chancery at Edinburgh. If the 
 deceased had no domicile in Scotland, it is presented to the 
 Sheriff of Chancery. 
 
 Appendix, Rule 1. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 31 & 32 Vict. c. 101, s. 28. 1. 
 
 1049. In the case of a special service, the petition is 
 presented either to the Sheriff of Chancery, or in the Sheriff 
 Court of the county or district where the lands lie. If the 
 lands are in different counties, or in several burghs in different 
 counties, then the petition must be presented to the Sheriff 
 of Chancery. 
 
 31 & 32 Vict. c. 101, s. 28. 
 
 1050. If a petitioner craves general service, and special 
 service, in the same character, he may combine the applications 
 in one petition, if the domicile of the deceased proprietor was 
 in the same sheriffdom as that in which the lands lie. If they 
 were in different sheriffdoms, separate petitions are necessary, 
 or the combined petition may be presented to the Sheriff of 
 Chancery. 
 
 31 & 32 Vict. c. 101, s. 48. 
 
 4. Publication. 
 
 1051. No procedure can take place upon the petition till it 
 has been published. The publication is made edictally at 
 Edinburgh, and also, in the local jurisdiction, upon the Malls 
 of the district Court-house (generally upon the door or in a 
 convenient place in the Sheriff-clerk's office). Notice by regis-
 
 460 SERVICE OF HEIRS. 
 
 tered postal letter lias also to be given by the Sheriff-clerk to 
 any person who has lodged a caveat. After the lapse of fifteen 
 days from the last date of publication, or twenty days in the 
 case of Orkney and Shetland, or thirty days where a deceased 
 proprietor has died abroad, evidence is taken by the Sheriff or 
 his Commissioner. Any Justice of the Peace, any notary 
 public, or the Provost or a bailie of any city or royal or parlia- 
 mentary burgh may act as Commissioner without special 
 appointment, but in practice a Commissioner is appointed, 
 before whom evidence is led. The Ordinary Sheriff Court rules 
 as to taking evidence on commission apply, and when the 
 Commissioner has reported the evidence, the Sheriff may serve 
 the petitioner, or refuse the service, or dismiss the petition. 
 If the Sheriff think it necessary or desirable, he may, before 
 pronouncing decree, hear interested parties, but whore there 
 is no competition it is not usual to do so, and decree is granted 
 immediately upon the evidence being reported to the Sheriff. 
 
 31 & 32 Vict. c. 101, s. 30, 31. 
 
 5. Competition. 
 
 1052. If there are competing petitions, they may be con- 
 joined, and proof heard in regard to the one claim as against 
 the other, in the same manner as in any other competitive 
 process. But in this case a question of expenses between the 
 competitors may arise, and as the Sheriff is directed to dispose 
 of the question of expenses at the same time as he pronounces 
 decree upon the petitions, a diet for hearing the competitors 
 is usually fixed, after the evidence has been reported, and 
 before decree is pronounced. 
 
 31 & 32 Vict. c. 101, s. 35. 
 
 (j. Appeal. 
 
 1053. There is no appeal from the Sheriff-Substitute to 
 the Sheriff, or from the Sheriff-Substitute to the Sheriff of 
 Chancery. But when either the local Sheriff or his Substitute, 
 or the Sheriff of Chancery, as the case may be, has refused to 
 serve a petitioner, or has dismissed a petition, or has repelled 
 the objection of an opposing party, his judgment is subject 
 to review by the Court of Session, upon a note of appeal,
 
 APPEAL. I'-l 
 
 which may be presented within fifteen days of the dale of the 
 judgment, or where the proceedings have taken place in Orkney 
 and Shetland within twenty days. If the Court of S< 
 decide that service should be granted, they do not themselves 
 pronounce decree, but remit the process back to the Sheriff 
 that he may do so. 
 
 31 & 32 Vict. c. 101, s. 42. 
 
 1054. In opposed and competitive petitions, any interested 
 party may remove the proceedings to the Court of Session for 
 jury trial at any time before proof is begun. This is directed 
 to be effected "by a note of appeal in, or as nearly as may be 
 " in, the form of a note of appeal under the Court of Session 
 " Act, 1868." The section of that statute, which contained the 
 form of a note of appeal, has been repealed by the Sheriff 
 Courts Act, 1907, but its terms Lave been practically 
 re-enacted by the 1907 statute, and a note of appeal accord- 
 ingly will now be in the form prescribed in Rule 93. If the 
 result of the Court of Session proceedings is that service is to 
 be granted, a remit is made to the Sheriff to grant decree of 
 servk-e. 
 
 Appendix, Rule 93. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 31 & 32 Vict. c. 100, s. 66. 93. 
 
 31 & 32 Vict. c. 101, s. 41. 
 
 7. Objection. 
 
 1055. Any interested person may appear in a service process, 
 but in general an objector has no locus standi, unless his ground 
 of opposition is that he lias a competent claim to be served 
 heir. An objector need not necessarily present a competing 
 petition, although it is convenient that he should do so, nor 
 does he require to lodge a notice of appearance. He must, 
 however, state his objections in writing, which is usually done 
 by minute, and the Sheriff is directed to dispose of the objec- 
 tions in a summary manner, but he may make up a record, 
 upon the petition and minute of objections, and take proof if 
 necessary. As repelling objections is a ground of appeal, an 
 interlocutor repelling objections falls within the Sheriff Court 
 rule requiring a note to be appended setting forth the grounds 
 of judgment. 
 
 Appendix, Rule 82. 7 Ed. VII. c. 51, Sch. I., Rule 
 
 31 & 32 Vict. c. 101, s. 40. 82.
 
 462 SERVICE OF HEIRS. 
 
 8. Extract. 
 
 1056. When final decree of service has been pronounced 
 by the Sheriff, it is not extractable as is an Ordinary Sheriff 
 Court decree. The whole process is transmitted by the Sheriff- 
 clerk to the Director of Chancery, the decree is recorded in 
 Chancery, and an extracl thereof is sent to the Sheriff-clerk. 
 If decree of service applicable to separate parcels of land has 
 been prayed for, and the lands identified in the petition, 
 separate extracts may be given out. 
 
 31 & 32 Vict. c. 101, s. 36. 
 
 9. Reduction. 
 
 1057. Decree of service may be challenged in an action of 
 reduction within twenty years, but only by a party alleging a 
 competing title. The onus rests upon the party seeking 
 reduction to show that the evidence upon which the service 
 was granted was insufficient to support the decree; but the 
 decree will not be reduced upon mere technical grounds, as, 
 for instance, a mistaken description of the character of the 
 heir, if it appear that he was, in fact, the proper successor 
 to the deceased proprietor. The Court of Session may direct 
 the case to be tried by jury. 
 
 Act 1617, c. 13. Alexander v. Officers of State, 
 
 31 & 32 Vict, c. 101, s. 43. 1868, 6 M. (H.L.) 54. 
 
 37 & 38 Vict. c. 94, s. 11. 
 
 10. Completion of Title. 
 
 1058. The procedure for obtaining special service is, by 
 the Conveyancing and Land Transfer Act, 1874, made appli- 
 cable to the case of a person desiring to procure himself infeft 
 in lands to which his author had only a personal title. The 
 Sheriff's decree sets forth the links in the chain of title, between 
 the proprietor last iniett and the pursuer, and, when recorded 
 in the appropriate register, this decree has the same effect as 
 an extract decree of special service. 
 
 37 & 38 Vict. c. 94, s. 10, Sch. E
 
 CHAPTER XXI. 
 COMMISSARY PRACTICE. 
 
 1. IXTRODUCTORY. 
 
 1059. As in the case of succession to heritage, so also in the 
 case of a moveable succession, the Sheriff is the official who 
 declares the title of the successor. It has been already pointed 
 out that what was once the separate Commissary Court had 
 originally a wide jurisdiction, which had descended from 
 the Ecclesiastical Courts which the Commissary supplanted, 
 but that, by the time the offices of Sheriff and Commissary 
 were united, the functions of the Commissary had prac- 
 tically become restricted to the administrative office of 
 confirming the title of executors-nominate, and of appointing 
 executors to deceased persons who had not named them. The 
 Commissary Courts as separate tribunals were finally abolished 
 in 18TG, and their powers and duties transferred to the Sheriff 
 Court. 
 
 4 Geo. IV. c. 97. 39 & 40 Vict. c. 70, s. 35-52. 
 
 11 Ceo. IV. & 1 Will. IV. c. 69, 
 s. 30. 
 
 2. Effect of Sheriff Courts Acts. 
 
 1060. The Sheriff Courts Acts, 1907-1913, do not affect the 
 special regulations applicable to Commissary practice, but they 
 in some respects alter the forms of process. When a Commis- 
 sary process assumes the aspect of a litigation, it then, like 
 any other litigation, becomes subject to the general procedure 
 rules of the recent statutes. But regard must still be had to the 
 older statutes, and to the Acts of Sederunt relating to Com- 
 missary practice, as well as to the schedule of modern Sheriff 
 Court procedure rules. 
 
 4 Geo. IV. c. 98. Act of Sederunt, 19th Maivh, 
 
 21 & 22 Vict. c. 56. 1859. 
 
 39 & 40 Vict. c. 70, s. 35 52.
 
 404 COMMISSARY PBACTICE. 
 
 3. Executor-nominate. 
 
 1061. An executor-nominate does not require to apply to the 
 Court by formal action to obtain a title, for the will is sufficient 
 title; but to enable him to uplift and discharge debts, and 
 generally to administer the estate, the executor must be 
 confirmed by the Sheriff. The duty of the Court is rather 
 administrative than judicial, and in practice is discharged 
 by the Sheriff-clerk, under the direction of the Sheriff, if 
 any peculiarity or doubt presents itself to the Sheriff-clerk, 
 which renders it necessary to consult the Sheriff. In the 
 ordinary case the executor produces the instrument nominating 
 him, along with an inventory of the estate of the deceased, 
 duly sworn to, both of which are recorded in the books of 
 Court, whereupon the Sheriff authorises confirmation, and the 
 Sheriff-clerk issues a writ of confirmation, called a " testament 
 " testamentar," ratifying the appointment of the executor, 
 and authorising him to administer the estate. An executor- 
 nominate does not now require to find caution for his intro- 
 missions, as does an executor-dative. 
 
 4 Geo. IV. c. 98. 39 & 40 Vict. c. 70. 
 
 21 & 22 Vict, c. 56. 44 & 45 Vict. c. 12. 
 
 4. Executor-dative. 
 
 1062. "When a deceased person has not named executors, 
 they may be appointed by the Sheriff. Executors appointed 
 by the Court are called executors-dative, as distinguished from 
 executors-nominate, who have been selected by the deceased 
 himself. An application to the Court for the appointment of 
 an executor, being a civil proceeding in the ordinary Sheriff 
 Court, is an action, and accordingly must be commenced by 
 initial writ, in terms of the Sheriff Courts Acts, 1907-1913. 
 The initial writ, besides giving the name and designation of the 
 deceased, and the date and place of his death, should state 
 where he had his ordinary or principal domicile, and also the 
 character in which the pursuer craves to be appointed 
 executor — as, for instance, relict, next-of-kin, creditor, or 
 disponee. 
 
 Appendix, Rule 1. 7 Ed. VII. c. 51, s. 3 {d), Sch. 
 
 I., Rule 1.
 
 PROCEDURE. 465 
 
 5. Procedure. 
 
 1063. No defenders require to be called, and so no service is 
 necessary, but the application is publicly intimated on the 
 walls of the Court-house, or in a conspicuous place in the 
 Court and the Commissary Clerk's office, and at the Edictal 
 Citation Office in Edinburgh. Any person interested is 
 entitled to appear to oppose the appointment craved, but in 
 general opposition will be relevant only upon the ground that 
 the compearer has himself a title to the office, and in that case 
 the more common practice is for him to present a competing 
 application, which may be conjoined with the other, and a 
 record made up in the conjoined process for deciding the 
 question who is entitled to the office. When a competing 
 application is presented, the Sheriff will order intimation to 
 prior applicants, and to any executor already decerned upon 
 any part of the deceased's estate. After confirmation in one 
 application has been issued, a competing application is 
 incompetent, the remedy then being by way of reduction. 
 
 21 & 22 Vict. c. 56, s. 5. Ersk. III., 9, 32. 
 
 39 & 40 Vict. c. 70, s. 44. Webster v. Shiress, 1878, 6 R. 
 
 Act of Sederunt, 19th March, 102. 
 1859.. s. 5. 
 
 1064. An opposed application for the appointment of an 
 executor, or a conjoined process of competing applications, in 
 effect becomes an ordinary Court process, in which a record 
 may be made up and, if necessary, proof taken, as in any other 
 contested cause, and the judgment of the Sheriff is subject to 
 review in common form. In an unopposed application, if the 
 pursuer is a relative of the deceased, the next-of-kin relation- 
 ship is in practice assumed to be as stated, but if the applicant 
 is an outsider, he must produce with his initial writ prima 
 facie evidence of his title to the office, as, for instance, the 
 conveyance to a disponee, or the documents vouching the debt 
 of a creditor. 
 
 1065. An application for appointment of executor must be 
 formally called in Court, for until then it cannot be known 
 whether it is opposed. It is enrolled by the Sheriff-clerk for 
 the first Ordinary Court day occurring after the lapse of nine 
 clear days after the date of the certificate of intimation. This 
 30
 
 466 COMMISSARY PRACTICE. 
 
 certificate is endorsed by the Sheriff-clerk upon the initial 
 writ, "and shall be sufficienl evidence of the facts therein set 
 "forth." If at the first calling there is no opposition, decree 
 will be granted decerning the pursuer executor as craved. If 
 the application is opposed, the Sheriff may order minutes of 
 objection, or a condescendence and answers, as the circum- 
 stances may require, or continue the case that a competing 
 application may be conjoined. 
 
 21 & 22 Vict. c. 56, s. 4-6. 39 & 40 Vict. c. 70, s. 44. 
 
 6. Confirmation. 
 
 1066. When decree has been pronounced, decerning a 
 person executor, extract may be given out after the lapse of 
 three days, or, in a contested case, after the lapse of the 
 fourteen days allowed for appeal, unless the Sheriff shortens 
 the time ; but, although this may give the executor a title 
 to sue a debtor to the deceased, it does not invest him with full 
 power to administer the estate. He must first make payment 
 of the Government duties which may be exigible, and lodge 
 an inventory of the estate, and obtain confirmation in the 
 same manner as in the case of an executor-nominate. The 
 writ of confirmation issued to the executor who has been 
 appointed by the Court is termed a " testament-dative." 
 
 21 & 22 Vict. c. 56. 
 
 1067. Confirmation will not be issued to an executor-dative 
 till he has found caution for the amount of the estate confirmed 
 to, or for such less amount as the Sheriff may accept. But, 
 if an executor desires the caution to be restricted, he must 
 make application for that in a separate process, the initial 
 writ in which will set forth any facts and circumstances which 
 are relied upon as warranting the caution being restricted, 
 and crave an order restricting the amount. The procedure 
 upon this is entirely in the Sheriff's discretion, but before 
 entertaining the crave it is usual to order public intimation 
 by newspaper notice. The cautioner must not be beneficially 
 interested in the estate, and must be subject to the jurisdiction 
 of the Scottish Courts. 
 
 4 Geo. IV. c. 98, s. 2.
 
 COURT. 407 
 
 7. Court. 
 
 1068. The only Court in which an application for the 
 appointment of an executor is competent is the Sheriff Court 
 of the county or district within which the deceased person 
 had ai ihe time of his death his ordinary or principal domicile. 
 If the deceased had no fixed domicile in Scotland, but has 
 left property within Scotland, the application must be 
 presented in the Sheriff Court at Edinburgh. 
 
 11 Geo. IV. & 1 Will. IV. c. 69. 21 & 22 Vict. c. 56, s. 3. 
 
 8. Testament Implying Nomination. 
 
 10G9. It sometimes happens that a testamentary writing 
 is so expressed as to create doubt whether or not a party 
 named in it has been nominated as executor, and so a judicial 
 declaration is desired that the testament implies his nomina- 
 tion. In that event, it is competent for the party who is 
 mentioned in the doubtfully expressed testament to apply to 
 the Court, not for his appointment as executor-dative, but 
 for his confirmation as executor-nominate. The initial writ 
 will narrate the deed which is relied upon, as implying nomi- 
 nation, and cite the phraseology employed in it, and crave 
 the Court to grant confirmation as executor-nominate to the 
 person named in the testamentary writing. In the general 
 case, this will involve merely a construction of the testa- 
 mentary writing, and the Sheriff may decide the question de 
 piano, but in some cases it may be desirable first to order 
 public advertisement. If the crave is granted, the applicant 
 is confirmed executor-nominate, and does not require to find 
 caution. 
 
 9. Recall of Appointment of Executor. 
 
 1070. The appointment of an executor-dative may be 
 recalled in the Sheriff Court where decree was granted if 
 confirmation has not yet been issued, as, for instance, where 
 a person having the best title to the office had been temporarily 
 absent and unaware of the death, and in his absence some 
 other person, having an inferior title to the office, had applied 
 for the office of executor, and, unopposed, had been decerned 
 executor. The party really entitled may crave for recall
 
 468 COMMISSARY PRACTICE. 
 
 of this appointment, and for his own appointment in room of 
 the usurper. In his initial writ the pursuer will explain 
 his omission to apply for the office earlier, and narrate the 
 defect in the title of the other applicant. He should call as 
 a defender the party who has obtained the decree. If not, 
 the Court will order intimation to him. 
 
 10. Conjunction of Applicants. 
 
 1071. A person who cannot challenge the title of another 
 to the office, but who has himself exactly the same qualifica- 
 tion, as, for instance, one of two brothers of a deceased person, 
 may, before confirmation is issued, apply to be conjoined in 
 the office of executor-dative. The initial writ should narrate 
 the appointment already made, and the relationship in which 
 the pursuer stands to the deceased, and to the executor already 
 appointed, and crave that the pursuer be conjoined in the 
 office of executor. The already appointed executor should be 
 called as a defender. 
 
 11. Executor-Creditor. 
 
 1072. Where a deceased person has not nominated an 
 executor, or a nominated executor has not accepted office, or 
 where the next of kin are unknown or unreasonably delay 
 seeking- confirmation, a creditor of the deceased person, with 
 a liquid or duly constituted debt, has a title to apply for his 
 appointment as executor-dative qua creditor. In his initial 
 writ the pursuer will set forth the nature of his debt, and he 
 must produce his documents of debt. The creditor should 
 first charge the next-of-kin of the deceased to confirm as 
 executor, and narrate in his initial writ that such a charge 
 has been given and not responded to, as well as set forth the 
 specific grounds of his claim against the deceased. 
 
 Turnbull v. M'Naughton, 1850, 12 D. 1097. 
 
 1073. A creditor may desire to take up the office of executor 
 only to attach the deceased's estate so far as necessary to satisfy 
 his debt. To effect this he may bring an action cognitionis 
 causa tantum. In this case the creditor does not necessarily 
 require to charge the next-of-kin of deceased to confirm himself 
 as executor. The next-of-kin is called as defender. If there
 
 EXECUTOR-CREDITOR. 469 
 
 is no next-of-kin known to pursuer, next-of-kin if any there 
 be are culled edictally, and in certain cases the defender called 
 is the Lord Advocate, representing the Crown as ultimas 
 hares of the deceased. The initial writ narrates the nature 
 of pursuer's debt and the nature and situation of the estate 
 said to have belonged to the deceased, and craves decree 
 cognition is causa. 
 
 Forrest v. Forrest, 1863, 1 M. 806. 
 
 1074. Not only a creditor of the deceased, but a creditor 
 of the deceased's next-of-kin, having first constituted his debt 
 against the next-of-kin, is entitled to apply for the office of 
 executor, for the purpose of making good his debt out of the 
 portion of the deceased's estate falling to the next-of-kin. 
 The initial writ should narrate the fact of the decease, the 
 interest of the next-of-kin in the deceased person's estate, and 
 the particulars of the pursuer's claim against him. 
 
 1075. To entitle him to administer the estate of the 
 deceased, even to the extent of operating payment of his own 
 debt, an executor-creditor must obtain confirmation in the 
 same manner as a next-of-kin executor, and, in like manner, 
 must give up an inventory of the deceased's estate and find 
 caution, but with this difference, that whilst he must lodge 
 an inventory, he may confirm only to part of the estate, in 
 which event he finds caution only to the extent he confirms 
 to. Applications by creditors are not very common, for, if 
 the deceased person has left estate, it can be sequestrated 
 under the bankruptcy statutes, or creditors may find other 
 means of attaching the estate and making it available for 
 payment of the deceased's debts. 
 
 4 Geo. IV. c. 98, s. 4. 
 
 12. Minor. 
 
 1076. A minor may be nominated as an executor, or may 
 apply to the Court for his appointment to the office ; but he will 
 act along with his legal guardian or a factor appointed to him 
 by the Court. The appointment of a factor to a minor executor 
 is not necessarily an administrative act of the Court under the 
 Judicial Factors Act or the Pupils' Protection Act. It was
 
 470 COMMISSARY PRACTICE. 
 
 always within the scope of the Commissary to appoint such a 
 factor, and this power devolved upon the Sheriff, along with 
 other powers, when the office of Commissary was merged in that 
 of the Sheriff. The minor may be decerned as executor, and 
 then a factor appointed to act for him in the discharge of his 
 office; but the more common and the most convenient practice 
 is for the Court first to appoint a factor for the minor, and 
 then for the factor to apply for the office of executor qua 
 factor. The factor in such a case is subject to the supervision 
 of the Accountant of Court. 
 
 Johnston v. Louden. &c, 1838, Reid, 1830. 8 S. 960. 
 
 1 D. 540. 
 
 13. Married Woman. 
 
 1077. A married woman may apply for the office of 
 executrix-dative to a deceased person, and that in any character 
 the qualification for which she possesses, whether as next-of-kin 
 of the deceased, or as a disponee or legatee, or as a creditor. 
 The mother of a deceased son was not formerly regarded as 
 amongst the next-of-kin who were entitled to apply for the 
 office of executor ; but as the qualification of a next-of-kin is 
 based upon his having a possible interest in the deceased's 
 estate, and as a mother has now a succession interest, she has 
 become, in the Commissary sense, a next-of-kin, and the mother 
 of a son dying without issue, predeceased by his father, is recog- 
 nised as competent to be decerned executrix qua mother. In 
 the same way a husband, who formerly was not amongst the 
 next-of-kin of his deceased wife, having now an interest in her 
 succession, may competently (as a statutory beneficiary) apply 
 for the office of her executor. 
 
 Muir, 1876. 4 R. 74. Stewart v. Kerr, 17 R, 707. 
 
 Webster, 6 R. 105. 
 
 14. Legatee. 
 
 1078. A legatee of a deceased person is entitled to apply 
 for the office of executor, if the deceased have no known next- 
 of-kin, and even if there are next-of-kin, a general disponee 
 under a testamentary writing is preferred. In the initial writ 
 the pursuer will narrate the testamentary writing under which 
 he is a beneficiary, and the nature of his interest under it, and
 
 LEGATEE. 471 
 
 crave to be decerned as executor qua legatee. The procedure 
 is the same as in an application by a next-of-kin. But such 
 an application is not now often necessary, for under the 
 Executors Act, 1900, failing appointment of executors, a b 
 mentarv trustee, whom failing, a general disponee, universal 
 legatory, or residuary Legatee, is held as an executor-nominate, 
 and entitled to confirmation in that character. 
 
 63 & 64 Vict. c. 55, s. 3. 
 
 15. Foreigner. 
 
 1079. An executor to administer the estates of a deceased 
 foreigner, who Lad acquired a domicile in Scotland and died 
 there, leaving estate situated in Scotland, may be appointed in 
 the Sheriff Court of the jurisdiction of his domicile, or in the 
 Sheriff Court at Edinburgh, as the case may be. It does 
 not disqualify an applicant for the office of executor that he 
 is himself a foreigner, but a cautioner for him will not be 
 accepted unless he is subject to the jurisdiction of the Scottish 
 Courts. Where the deceased person is a subject of a foreign 
 State, and there is no person, such as a next-of-kin, or legatee, 
 or creditor, having a title to administer his estate in Scotland, 
 the Consular affent for the countrv of the deceased's 
 nationality, or the Yice-Consul of the district where the 
 deceased died, may competently apply for the appointment of 
 executor. The initial writ will narrate the nationality of the 
 deceased and the title of the Consular pursuer. The application 
 will be published and the procedure observed as in the case of 
 a next-of-kin, and the Consul will in like manner require to 
 find caution before confirmation. 
 
 24 & 25 Vict. c. 121, s. 4. 
 
 16. Sealing Kerositories. 
 
 1080. It occasionally happens that a person dies, leaving 
 effects which there is no one at the moment to take charge 
 of; or, more frequently, that a person in charge of the 
 deceased's house desires to avoid the responsibility of the 
 custody of the deceased's effects. In such a case any interested 
 person, such as a relative or a housekeeper, may apply to the 
 Court to have the respositories of the deceased sealed up, and 
 the effects preserved in safe custody, till some one obtains an
 
 472 COMMISSARY PRACTICE. 
 
 official title to administer the estate. Such an application is 
 usually presented immediately after the death, and craves the 
 Court to authorise the Sheriff-clerk or his depute to seal up 
 the repositories meantime, and after the interment of the 
 deceased to open them and inventory the effects. This is not 
 a process for the settlement of competing claims to the custody 
 of the eifects, but merely a ministerial intervention of the 
 Sheriff to preserve the estate. It is a common law summary 
 application made to the Sheriff as Judge Ordinary of the 
 Bounds as well as Commissary Judge. It requires no service 
 or intimation, and the warrant sought is granted de piano if 
 the pursuer avers any ostensible interest to make the 
 application. The person appointed usually takes immediately 
 into his own custody testamentary writings found in the house, 
 or money, or documents of debt, or valuables. 
 
 17. Confirmation of Small Estates. 
 
 1081. A formal Court process is not always necessary to 
 obtain confirmation in the case of small estates. The Intestate 
 Widows and Children (Scotland) Act, 1875, which introduced 
 summary confirmation, defined a small estate as one where 
 the whole personal estate did not exceed in value £150. In 
 the following year estate real and personal was included by 
 the Small Testate Estates (Scotland) Act, 1876. In 1881 the 
 value limit of the personal estate and effects was raised to 
 £300 by the Customs and Inland Revenue Act, 1881. The 
 Finance Act of 1894 further raised it to £500, inclusive of 
 heritable and moveable estate. No initial writ is required, nor 
 is there any publication. The applicant simply explains the 
 circumstances to the Sheriff-clerk, and, if he is an executor- 
 nominate, produces the will, at the Sheriff Court of the 
 deceased's domicile, or the Sheriff Court at Edinburgh, as the 
 case may be. The Sheriff-clerk has to be satisfied that the 
 estate is within the value limit, and that the applicant is 
 entitled to apply for confirmation. If these conditions are 
 fulfilled, the inventory and relative affidavit are filled up by 
 the Sheriff-clerk, and the confirmation is issued, the applicant, 
 if not a nominated executor, first finding caution. 
 
 38 & 39 Vict. c. 41. 57 & 58 Vict. c. 30, s. 16. 
 
 39 & 40 Vict, c 24. 63 & 64 Vict. c. 55. s. 9. 
 44 & 45 Vict. c. 12, s. 34-37.
 
 ESTATE OF MTSSING PERSON. 473 
 
 18. Estate of Missing Peeson. 
 
 1082. The common law Commissary jurisdiction of the 
 Sheriff applies only as regard the estate of a deceased person 
 the dale and place oi whose decease is known. To this lias been 
 added a statutory ^/.sv-Commissary jurisdiction, applicable to 
 the case of a person who has gone amissing and who has left 
 estate in Scotland. The original Presumption of Life Limita- 
 tion Act of 1881 provided that such a person, who had not 
 been heard of for at least seven years, was to be presumed to 
 have died, to the effect that his estate might be appropriated by 
 the person or persons who would have taken it in the event of 
 his having actually died at the date which the Court should 
 find he was presumed to have died. Proceedings to this effect 
 were originally competent in the Sheriff Court only if the value 
 of the missing person's estate did not exceed £150. But the 
 1881 Act was repealed, and the Sheriff Court value limit was 
 raised to £500 by the Presumption of Life Limitation Act of 
 1891, which now regulates the procedure. 
 
 44 & 45 Vict. c. 47. 54 & 55 Vict. c. 29. 
 
 1083. The value which is to be regarded is that of " all 
 " property, heritable and moveable, real or personal, or any 
 " right or interest therein of any description," with the single 
 exception of a sum due under a life insurance policy upon the 
 life of the missing person. A claimant under such a life 
 policy is required to establish his claim, as if the Act had not 
 been passed. 
 
 54 & 55 Vict. c. 29. s. 10. 12 (2). 
 
 1084. The Court of Session has a general concurrent juris- 
 diction with the Sheriff Court in applications under this 
 statute, and, if the value of the estate exceeds £500, the 
 Court of Session is the only competent Court. Within the 
 value limit, the Sheriff Court jurisdiction does not rest upon 
 domicile, but upon the situation of the estate of the missing 
 person. The application is competent only in the Sheriff 
 Court of the county or district " in which the said estate or 
 " the greater part thereof is situate." The term " estate " 
 comprises both heritable and moveable property, and the value 
 of both must be taken into account. Such an application is
 
 474 COMMISSARY PRACTICE. 
 
 an action in the sense of the Sheriff Courts Acts, 1907-191:5. 
 The general concurrent jurisdiction conferred upon the Court 
 of Session by the Presumption of Life Limitation Act is quali- 
 fied by the general provision of the Sheriff Courts Act, 1907, 
 that the Sheriff Court has privative jurisdiction in every cause 
 where the value does not exceed £50. 
 
 Appendix, s. 7. 7 Ed. VII. c. 51, s. 7. 
 
 54 & 55 Vict. c. 29, s. 12. 
 
 1085. The form of application to the Court is by initial 
 writ, narrating the fact of the disappearance of the missing 
 person, and setting forth any material facts and circumstances 
 tending to fix the probable date of his death, and craving the 
 Court to find and declare (a) the date at which the missing 
 person was last known to be alive; (b) that he died at some 
 specific date within seven years of the date at which he was 
 last known to be alive ; or, if there is not evidence to fix a 
 specific date (c) to declare that the date upon which he is 
 presumed to have died is a date exactly seven years after the 
 date on which he was last known to be alive. The general 
 process direction of the Presumption of Life Limitation Act 
 is that " the Sheriff shall direct such intimation and service 
 " and such investigation or inquiry as he may think fit." The 
 most common practice is to order general intimation by news- 
 paper advertisement, and thereafter, whether the application 
 is opposed or not, to take proof before the Sheriff or a Com- 
 missioner. It is not in the general case necessary to order 
 answers, but it is competent, and when the application is 
 opposed it may be convenient to do so, and to make up a 
 formal record. " The procedure in so far as concerns appeal 
 " to and review by a higher Court shall be in all respects the 
 " same as in an action in the Ordinary Sheriff Court." The 
 judgment of the Sheriff-Substitute, therefore, is appealable to 
 the Sheriff, and the judgment of either the Sheriff-Substitute 
 or the Sheriff is appealable to the Court of Session in the 
 same manner as in an ordinary action; but the right of appeal 
 to the Court of Session is qualified by the provision of the 
 Sheriff Courts Act, 1913, barring appeal to the Court of Session 
 where the value does not exceed £50, unless the Sheriff certifies 
 the cause. 
 
 Appendix, s. 7-28, Rules 86-96. 7 Ed. VII. c. 51, s. 7, Sch. I., 
 
 54 & 55 Vict, c. 29. s. 3, 12 (b). Rules 86-96. 
 
 2 & 3 Geo. V. c. 28, s. 2.
 
 ESTATE OF MISSING PERSON. 475 
 
 1086. The persons who are alone entitled to make an 
 application to the Court under the Presumption of Life 
 Limitation Act are (a) a person who is entitled to succeed 
 to any estate on the death of the missing- person, as, for 
 instance, a disponee or legatee under a settlement, or an heir 
 in heritage, or a next-of-kin ; (b) a person to whom the death 
 of the missing person would pass the property right in the 
 estate ; or (c) the fiar of estate burdened with a liferent to the 
 missing person. To these persons the benefit of the statute is 
 restricted. It is not in express terms available to creditors, 
 either of the missing person, or of the person entitled to make 
 the application, although creditors are often the persons most 
 interested in fixing a date of death of a missing person. But 
 a creditor holding an intimated assignation, or a contingent 
 conveyance, or other title to convertible estate, is probably 
 within the definition of the second class of applicant, viz., a 
 person the transmission of estate to whom depends upon the 
 death of the missing party. 
 
 54 & 55 Vict. c. 29, s. 2-9. 
 
 1087. The obtaining of judgment under the Presumption of 
 Life Limitation Act has of itself no effect in transferring the 
 estate of the missing person. It merely fixes the date of his 
 death. The person interested will require thereafter, in a 
 separate process, to take the appropriate steps to procure 
 himself confirmed executor and for making the estate avail- 
 able, or for making up a title to it. If the estate is intestate 
 moveable succession, the statute only applies if the missing 
 person was a domiciled Scotsman at the date at which he 
 is proved or presumed to have died. It is applicable also 
 only to estate which would at that date have been vested in 
 the missing person if then alive. 
 
 54 & 55 Vict. c. 29. s. 3. 6, 7. Mintv v. Ellis' Trustees, 1887, 
 
 Rainham v. Laing, 1881, 9 R. 15 R, 262. 
 
 207. 
 
 1088. The declaratory decree of the Court is a warrant to 
 make up titles, and to enter upon possession of the estate of 
 the missing person, and to sell or burden it, all as if the missing 
 person had actually died at the declared date at which he is 
 presumed to have died. But within thirteen years the party
 
 476 COMMISSARY PRACTICE. 
 
 taking the estate may be called upon to account, and to denude, 
 by the missing person himself, if he returns, or by any person 
 deriving right from him, which is preferable to the holder of 
 the decree. 
 
 54 & 55 Vict. c. 29, s. 3, 6, 7.
 
 CHAPTER XXII. 
 PUBLIC INQUIRIES. 
 
 1. Fatal Accidents, &c. 
 
 1089. It is the duty of the Sheriff to preside at certain 
 public inquiries authorised by statute. Of these the most 
 numerous are inquiries held under the Fatal Accidents 
 Inquiry statutes, the procedure in which in many respects is 
 similar to that of a coroner's inquest in England. The 
 original statute of 1895 covered only " all cases of death of 
 " any person or persons, whether employers or employed, 
 " engaged in any industrial employment or occupation in 
 " Scotland due, or reasonably believed to be due, to accident 
 " occurring in the course of such employment or occupation." 
 The Fatal Accident and Sudden Deaths Inquiry Act of 1906 
 extended the scope of this process to include all cases of 
 sudden or suspicious death in Scotland, when the Lord 
 Advocate directs a public inquiry to be held. The Sheriff may 
 preside at such inquiries, but in practice they are conducted 
 before the Sheriff-Substitute, whose decision is final upon any 
 question, as to the competency of evidence or otherwise, arising 
 in the course of the inquiry. If the Sheriff or Sheriff- 
 Substitute, for any reason satisfactory to the Secretary for 
 Scotland, is unable to hold the inquiry, a person holding the 
 qualification for a Sheriff-Substitute may be appointed by the 
 Secretary for Scotland to hold it. 
 
 58 & 59 Vict. c. 36. 6 Ed. VII. c. 35. 
 
 1090. Upon the occurrence of a death falling within the 
 statute, or in regard to which the Lord Advocate has directed 
 a public inquiry to be held, it becomes the duty of the 
 procurator-fiscal of the district within which the accident 
 occurred (a) to collect evidence in regard to the death; (b) to 
 present a summary application to the Sheriff craving him to 
 hold a public inquiry; (c) to furnish the Sheriff-clerk with
 
 47-s PUBLIC INQUIRIES. 
 
 information as to the relatives and the employer of the 
 deceased person. Upon this the Sheriff orders ;ui inquiry, and 
 fixes a time and place for holding it. The time is " as soon as 
 " reasonably possible," and the place is the Court-house nearest 
 to the place where the accident occurred, unless there are 
 special circumstances which seem to the Sheriff to make it 
 expedient to hold it elsewhere. The inquiry need not neces- 
 sarily be, although it almost invariably is, held within a Court- 
 house, but may be held in any other building " available and 
 " convenient." In the interlocutor ordering an inquiry, 
 warrant is included to cite witnesses and havers for all inter- 
 ested parties. It is the duty of the Sheriff-clerk to intimate 
 the time and place by letter to (a) the wife or husband or 
 nearest known relative of the deceased ; (b) the employer. The 
 Sheriff-clerk also intimates the time and place for the inquiry 
 in the local press. 
 
 58 & 59 Vict, c. 36, s. 3. 4. 6 Ed. VII. c. 35, s. 3. 
 
 1091. The inquiry is held before a jury of seven, two 
 special and five common jurors being selected from a panel 
 of fifteen. Challenge of jurors is not competent, as in a 
 criminal trial, but the employer of the deceased and all 
 persons engaged under the employer are disqualified. This 
 or any other objection to a juror may be taken by any person 
 interested in the inquiry, but it is the Sheriff, not the objector, 
 who decides whether a challenged juror shall serve. The 
 persons interested who may appear and take part in the 
 inquiry (personally or by counsel or agent, or by any other 
 person by leave of the Sheriff) include (a) the deceased's 
 relatives ; (b) the employer ; (c) a representative of fellow- 
 employees or any trades union or friendly society of which 
 deceased was a member ; (d) an inspector of mines ; (e) a 
 factory inspector; (/) "any other person or persons whom the 
 " Sheriff may consider to have a just interest in the inquiry." 
 Intimation should also be made of the time and place of the 
 inquiry to any Government Department or official having 
 statutory authority to order an inquiry. 
 
 58 & 59 Vict. c. 36, s. 4 (4) (5) 6 Ed. VII. c. 35. s. 2. 
 
 (6), 5 (8). 
 
 1092. The evidence is led, and the inquiry conducted, as 
 nearly as possible in the manner observed at a criminal jury
 
 FATAL ACCIDENTS, &c. 47!) 
 
 trial, and the ordinary rules of evidence apply. The evidence 
 is recorded under the supervision of the Sheriff, and may be 
 taken in shorthand. The jury may return a verdict by a 
 majority after the lapse of an hour, and the verdict is recorded 
 in the books of Gourt; but it is not competent to use it 
 in evidence, or to found upon it, in any subsequent judicial 
 proceedings, civil or criminal, arising out of the same accident. 
 At the conclusion of the inquiry, the Sheriff-clerk (a) furnishes 
 to the procurator-fiscal, to be by him transmitted to the Crown 
 Agent, the record of evidence and the productions, a copy of 
 the application to hold an inquiry, and a copy of the verdict; 
 (b) in a mining or factory accident, transmits copies of the 
 proceedings to the Inspector of Mines or the Inspector of 
 Factories, as the case may be. 
 
 58 & 59 Vict. c. 36, s. 4 (8), 5 (4) (5). 
 
 1003. The verdict of the jury is required to set forth, so 
 far as such particulars have been proved, (a) the place and 
 date of the accident ; (h) the resulting death or deaths ; (e) the 
 cau.se or causes of the accident or death ; (d) the person or 
 persons, if any, to whose fault or negligence the accident was 
 attributable ; (e) precautions omitted by which the accident 
 might have been avoided ; (/) any defects in system or mode 
 of working which contributed to the accident; (r/) any other 
 facts the jury think relevant to the inquiry. In addition 
 to these statutory requirements, the verdict of the jury 
 frequently contains, as a rider, opinions or recommendations 
 as to the conduct of work. Any person interested may obtain 
 from the Sheriff-clerk a copy of the verdict, or of the proceed- 
 ings, or any part thereof. 
 
 58 & 59 Vict. c. 36, s. 5 (5). 6 Ed. VII. c. 35, s. 2. 
 
 2. Board of Trade. 
 
 (a) Shipping Casualties. 
 
 1094. The Sheriff or the Sheriff-Substitute is a " judg 
 within the meaning of the Shipping Casualties Rules, 1907. 
 made under the authority of Part VI. of the Merchant 
 Shipping Act, 1894. Accordingly, the Board of Trade may 
 request the Sheriff to hold a public inquiry into the circum- 
 stances attending a shipping casualty. Upon receiving a
 
 480 PUBLIC INQUIRIES. 
 
 request to this effect, the Sheriff tixes a time and place for 
 
 the inquiry. It is competent to hold such an inquiry in a 
 
 Court-house or other suitable place. Notice is given by the 
 
 Board of Trade to the owner, master, and officers of the ship, 
 
 and to any other person whom the Board considers entitled to 
 
 notice. Any person who has been so notified becomes a party 
 
 in the inquiry, and, personally or by counsel or law agent, is 
 
 entitled to take part in the proceedings. The notice of 
 
 investigation embodies the questions which the Board of 
 
 Trade propose to raise at the inquiry, but the questions may 
 
 be amended at any time before parties are heard upon the 
 
 evidence. Any person who has not been served with a notice, 
 
 but who shows that he has an interest in the investigation, 
 
 and any other person to whom the judge grants leave, may 
 
 appear, but by doing so he becomes a party in the inquiry. 
 
 Every person who is a party in the inquiry has a possible 
 
 liability for costs. 
 
 57 & 58 Vict. c. 60, s. 466 (12), Shipping Casualties Rules, 1907, 
 
 479. s. 2-5. 
 
 1095. The inquiry Court consists of the Sheriff and one 
 or more nautical assessors, but the assessors are not selected by 
 the Sheriff, or appointed on the application of a party, as in 
 the case of a maritime civil cause in the Sheriff Court. They 
 are appointed on the requisition of the Board of Trade, and 
 notified of the place and date of the inquiry by the Secretary 
 of State. When the investigation involves possible suspension 
 of the certificates of a master or officers, at least two assessors 
 are appointed. If the conduct of an engineer is involved, 
 one of the assessors is selected from the engineer class. The 
 nautical assessors are selected from (1) certificated shipmasters 
 of five years' experience in the merchant service ; (2) certifi- 
 cated engineers of five years' experience in the merchant 
 service ; (3) naval officers of three years' service in the rank 
 of admiral or captain ; (4) other persons of nautical, engineer- 
 ing, or other special skill approved by the Secretary of State. 
 
 Shipping Casualties Rules, 1907, s. 2, 22, 26 and Appendix, Part 2. 
 
 1096. Diligence for recovery of documents prior to the 
 inquiry diet is not competent, as in a lawsuit, but any party 
 may, by registered letter, give notice to any other party, 
 requiring him to produce documents at the inquiry diet; and,
 
 BOARD OF TRADE. 181 
 
 if, this aotice is not complied with., flic party who gave the 
 notice is entitled In lend secondary evidence of the contents 
 of the documents called for. A party may also, by the like 
 notice, call upon any other party to admil any documents, 
 and if, in the opinion of the Sheriff, that party unreasonably 
 refuse to make the admission asked, he may be found 
 liable to the party giving (he notice for the eo-ts of proving 
 of such documents. Tt is not competent to take evidence on 
 commission to lie in retentis, but an intending witness may 
 make an affidavit before a local Wrecks Receiver or before a 
 Commissioner to take oaths, and an affidavit may, by leave 
 of the Sheriff, be used as evidence at the inquiry. 
 Shipping Casualties Rules, 1907. s. 6-8. 
 
 1097. At the time and place appointed, the Court may 
 proceed with the inquiry, whether all or any of the paities 
 who have been served with a notice of investigation are present 
 or not. The inquiry may be adjourned from time to time, 
 and place to place, but the Sheriff may impose terms, as to 
 payment of costs or otherwise, as a condition of granting an 
 adjournment, and that whether the motion for adjournment 
 is made by the Board of Trade or by any party to the inquiry. 
 In practice, adjournments, being both expensive and incon- 
 venient, are, as far as possible, avoided, and the proceedings 
 are taken de die in diem till concluded. 
 
 Shipping Casualties Rules, 1907, s. 9, 14. 
 
 1098. The Board of Trade witnesses are first called, and 
 examined by the party representing the Board of Trade. Each 
 party in the inquiry is then entitled to cross-examine, in the 
 order allowed by the Sheriff. At the conclusion of the Board 
 of Trade evidence, the party representing the Board of Trade 
 is required to state, in open Court, the questions in regard to 
 the casualty, or the conduct of the ship's officers or others, 
 upon which the opinion of the Court is desired. Each party 
 in the inquiiy is entitled to be heard upon these questions 
 and to lead evidence, each witness called by him being subject 
 to cross-examination, in such order as the Court shall allow. 
 In such inquiries it frequently happens that a question as to 
 possible blame arises between two or more of the parties, in 
 which (-vent the usual order is for the party alleging blame to 
 lead, the other parties to cross-examine if they so desire, and 
 
 31
 
 482 1MBLIC INQUIRIES. 
 
 "the party blamed to cross-examine last. The rules of evidence 
 which apply in proofs are not strictly enforced in such 
 inquiries. The witnesses already examined for the Board of 
 Trade may be recalled by any party. The Sheriff may allow 
 such examination, or cross-examination, or re-examination as 
 he thinks reasonably necessary to fully expiscate the facts, 
 and, after all the evidence for parties other than the Board 
 of Trade has been called, the Board of Trade has the right 
 to produce further witnesses. The Sheriff, as the presiding 
 judge, has, of course, the right to question witnesses. The 
 rules make no provision as to the assessors doing so, but it 
 is convenient, and is the common practice, that, with permis- 
 sion of the judge, the assessors do question the witness after 
 all the parties have finished, and before the judge puts any 
 questions. At the conclusion of the evidence, each party is 
 entitled to be heard. The judgment of the Court is given in 
 the form of answers to the questions proposed by the Board 
 of Trade. If an officer's certificate is cancelled or suspended, 
 the judgment must be given in open Court. If not, it may 
 be put in writing and sent to the parties by the Sheriff-clerk; 
 but in practice the judgment is almost invariably delivered 
 in open Court, whether certificates are involved or not. 
 Shipping Casualties Rules, 1907, s. 10-15. 
 
 1099. It is within the power of the Sheriff to order the 
 costs of the inquiry, or any part thereof, to be paid by any 
 party to the inquiry. If a party is found liable to the Board 
 of Trade in costs, the decree therefor is in favour of the 
 solicitor to the Board of Trade. If the Board is found liable 
 to a party, the decree is in favour of that party. The rules 
 do not (except as regards the matter of non-production or 
 admission of documents) recognise costs as between parties in 
 the inquiry other than the Board of Trade, and the awarding 
 of such costs is not competent. It is only in very exceptional 
 cases, and where fault is proved, that a party in such an 
 inquiry is found liable in costs at all. When it does occur, the 
 imposition of costs is rather by way of punishment for blame 
 in connection with the casualty, than a finding for expenses in 
 the ordinary acceptation of the term. The ship's officers can 
 be penalised by suspension or cancellation of their certificates, 
 but others than officers are sometimes parties, as, for instance, 
 shipbuilders, shipowners, charterers, or stevedores, and the
 
 HOARD OF TRADE 1-83 
 
 imposition of a fine, in the shape of an order Cor payment of 
 the inquiry costs, is the only mode in which such partie 
 be reached, it blame for the casually is attributable to them. 
 Shipping Casualties, 1907. s. 1C. Appendix, Part I. (2). 
 
 1 100. At the conclusion of the inquiry, it is the duty of the 
 Sheriff to make a reporf to the Board of Trade. This is signed 
 by the Sheriff, and also by the nautical assessors if they concur 
 in it, as they usually do. But if, as sometimes happens, any 
 assessor does not concur in the report as stated by the Sheriff, 
 he need not sign it, and he may make an independent report 
 to the Board of Trade, explaining his dissent. The report 
 itself contains only the finding of the Court, as delivered in 
 open Court or communicated in writing to the parties, but it 
 is accompanied by an annex (which is not part of the judg- 
 ment, and is not communicated to the parties before being 
 sent to the Board of Trade), setting forth in detail the circum- 
 stances of the casualty and the reasons for the judgment. This 
 report is printed by the Board of Trade, and filed for reference, 
 a copy being sent to each party to the inquiry. 
 
 Shipping Casualties Rules, 1907, s. 17-18, Appendix, Part I. (3). 
 
 1101. The decision of the Court in a Board of Trade inquiry 
 is the judgment of the Sheriff, for which he is alone respon- 
 sible, although it may have been pronounced under the advice 
 of the assessors. When a certificate is suspended or cancelled, 
 the judgment is subject to review by a Division of the Court 
 of Session. Within twenty-eight days of the decision being 
 pronounced, or twenty-one days of the issue in London of the 
 print of the Sheriff's report to the Board of Trade, any party 
 in the inquiry may notify the other parties of his intention to 
 appeal. He then notifies also the Principal Clerk of Session, 
 who puts it to a roll for hearing. Within two days of the 
 appeal being set down for hearing, the appellant must notify 
 the other parties of the general grounds of the appeal. Before 
 the hearing, the appellant, if a party other than the Board 
 of Trade, must find caution for the costs of the appeal, to an 
 amount fixed by the Sheriff. 
 
 57 & 58 Vict. c. 60. s. 475. Shipping Casualties Rules, 1907, 
 
 b, 19. 20. 
 
 1102. The Appeal Court also has the assistance of assessors,
 
 l<\ PUBLIC ENQUIRIES. 
 
 and the proceedings are c Lucted as in an ordinary hearing 
 
 upon a reclaiming note The process before the Appeal Court 
 consists of the record of the proceedings before the Sheriff, 
 including the notes of evidence, the Sheriff's report to the 
 Board of Trade and relative annex, and the appellants' notice 
 giving the grounds of his appeal. No other pleadings are 
 essential, but others may be ordered by the Court. The Appeal 
 Court may hear further evidence on questions of fact, or in 
 reerard to circumstances which have occurred since the date 
 of the Sheriff's judgment. The Appeal Court may award costs 
 to or against any party. On the conclusion of the proceedings 
 the Appeal Court makes a report to the Board of Trade, 
 and upon this the Board may direct a re-hearing. But this 
 will not be ordered unless (a) new and important evidence 
 not available at the inquiry has been discovered; or (b) there is 
 reason to fear that a miscarriage of justice has occurred. If 
 a re-hearing is ordered, it takes place before the senior Lord 
 Ordinary, or other judge of the Court of Session, nominated by 
 i In- Lord President. 
 
 57 & 58 Vict. c. 60, s. 475. Shipping Casualties Rules, 1907, 
 
 s. 20. 
 
 1103. The Board of Trade may direct a re-hearing in any 
 investigation, in whieh event the investigation proceeds, 
 usually, although not necessarily, before a judge of the Court 
 of Session, who becomes in effect a final Court of Appeal. 
 
 57 k 58 Vict c. 60, s. 475. Shipping Casualties Rules, 1907, 
 
 s. 21. 
 
 (b) Survey. 
 
 1104. Analogous to the procedure of the Board of Trade 
 inquiry in the Sheriff Court, although it takes the form of an 
 appeal, is that of the inquiry held by the Sheriff under the 
 Merchant Shipping Act, 1894, in the event of a dispute arising 
 between a Board of Trade Surveyor and a shipbuilder, as to 
 whether a passenger vessel is so constructed as to entitle her 
 to a Board of Trade passenger certificate. Differences of 
 opinion which arise in regard to shipbuilding are usually 
 adjusted between the shipbuilder and the Board of Trade Sur- 
 veyor, during the construction of the vessel, and an appeal to 
 the Sheriff is not of frequent occurrence, but occasionally 
 some question of principle emerges which cannot be adjusted.
 
 BOARD OF TRADE. 485 
 
 II' t ho Board of Trade view is nut accepted by the shipbuilder, 
 the local Board of Trade Surveyor may refuse to granl the 
 Survey declaration, which is a accessary preliminary to the 
 Board of Trade granting a passenger certificate; or may 30 
 express the declaration as to lend to the certificate 1 icing refused, 
 in which event the shipbuilder may appeal to the Court of 
 Survey, which, if a special commissioner is not appointed, 
 means in Scotland the Sheriff (or the Sheriff-Substitute) of the 
 district within which the dispute has arisen, sitting with 
 assessors, as in a Board of Trade inquiry. The proceedings 
 are similar to those in a Board of Trade inquiry into a shipping 
 casualty. The Court may either sustain or refuse the appeal, 
 but, in either case, must make a report to the Board of Trade. 
 It the Court find that the vessel is entitled to a certificate, it 
 is granted by the Board of Trade 1 , the judgment of the Court 
 superseding the necessity for the local Surveyor's declaration. 
 Sitting as a Court of Survey, the Sheriff has full power to 
 award costs to or against any party appearing and becoming a 
 party. The decision of a Court of Survey is not subject to 
 review. 
 
 57 & 58 Vict. c. 60, s. 274, 275, 487, 489. 
 
 (c) Conduct of Ship's Officers. 
 
 1105. The Sheriff Court may also become a Court of 
 inquiry into the conduct of ship's officers, under the provisions 
 of the Merchant Shipping Act. If it is reported by the local 
 .Marine Hoard, or otherwise, to the Board of Trade, that any 
 certificated master, mate, or engineer is, from incompetency or 
 misconduct, unfit to discharge his duties, or that he has failed, 
 in a case of collision, to stand by to assist another vessel, the 
 Board of Trade may (a) appoint a person to hold an inquiry; 
 (b) direct the local Marine Board to hold an inquiry; or (c) 
 direct an inquiry to be held before a Court of summary jurisdic- 
 tion, which in Scotland means the Sheriff Court. In holding 
 such an inquiry, the Sheriff has the same powers, and t ho pro- 
 cedure as to conduct of the case, report, and review is the same, 
 as in an inquiry into a shipping casualty. The Board of 
 Trade may direct the person who has made the charge against 
 the officer to conduct the case, in which event that party's 
 duty is to superintend the "management of the case and to 
 " render such assistance to the Court as is in his power." 
 57 & 58 Vict. c. 60, s. 466 (5). 471 (1) (2> (4)
 
 CHAPTER XXIII. 
 SMALL DEBT COURT. 
 
 1. JURISDICTION. 
 
 1106. No part of the machinery of the Sheriff Court of 
 Scotland is of greater public utility than the special code for 
 the prompt recovery of small debts. Originated in 1825, with 
 jurisdiction up to the value of £5, it was reconstituted in 1829, 
 with jurisdiction up to £8 Gs. 8d. It was again reconstituted 
 in 1837, but the value limit remained at £8 Gs. 8d. until 1853, 
 when the Sheriff Court Act of that year raised it to £12. In 
 1889, the Small Debt code was broadened to include actions for 
 delivery of subjects within the £12 value, and the procedure 
 was otherwise improved. By the Sheriff Courts Act, 1907, the 
 value limit was raised to £20, and many useful provisions of 
 that statute made applicable also to the Small Debt Court. 
 
 Appendix, s. 42-48. 16 & 17 Vict. c. 83, s. 28. 
 
 6 Geo IV. c. 24. 52 & 53 Vict. c. 26. 
 
 10 Geo. IV. c. 55. 7 Ed. VII. c. 51, s. 42-48. 
 1 Vict, c. 41. 
 
 1107. The competency of an action in the Small Debt 
 Court is determined by the sum sued for. It is competent 
 to sue for a debt exceeding £20 if it is restricted to £20. In 
 that case, if deductions are made, these come off the amount 
 of the debt, not off the restricted sum. Accordingly, the full 
 amount of the debt should be set forth in the summons, and 
 restricted to £20. 
 
 Dalgleish & Kerr v. Anderson, 1883, 20 S.L.R. 412. 
 
 1108. It is not competent to sue in the Small Debt Court 
 for part of a due debt, reserving to sue again for another part; 
 nor is it competent to split a claim of over £20, and bring two 
 or more Small Debt actions. If a pursuer sues for less than 
 his prestable claim or demand, he is held to have abandoned 
 the remaining portion of it. But this bar exists only when the
 
 JURISDICTION. 487 
 
 first action has been heard and determined. A Small Debi 
 action taken out, but abandoned before decree is pronounced, 
 does not bar another action. 
 
 1 Vict. c. 41, 8. 2. Baird & Stevenson v. O'Hare, 
 
 Nelson v. Lanark County 1911, 27 S.C.R. 365. 
 
 Council, 1891, 7 S.C.R. 3. 
 
 1109. There is only one instance in which the machinery of 
 the Small Debt Court may be applied to a claim exceeding 
 £20. Under the Came Laws Amendment Act of 1877, an 
 action by a tenant against a landlord for damage to crops may 
 be laid in the Small Debt Court, provided the amount claimed 
 for such damage does not exceed i'50, in which event the whole 
 provisions of the Small Debt Acts apply to the case, with the 
 additional privilege to either party of requiring that the 
 evidence be recorded, in which case there is an appeal from 
 the Sheriff-Substitute to the Sheriff, but the Sheriff's decision 
 is final. 
 
 40 & 41 Vict. c. 28, s. 7. 
 
 1110. The Sheriff's jurisdiction in the Small Debt Court is, 
 as regards actions competent in that Court, now practically 
 co-extensive with his jurisdiction in the Ordinary Court. The 
 jurisdiction clauses of the Sheriff Courts Act, 1907, are, so 
 far as appropriate, applicable also to a Small Debt Court. 
 It is, accordingly, now competent to sue a Small Debt action 
 against joint defenders in the Sheriff Court where any one of 
 them has acquired a residential domicile, and this remains 
 competent for forty days after such defender has left that 
 domicile, if his present residence in Scotland is unknown. 
 Originally, Small Debt jurisdiction, like that of the Ordinary 
 Court, extended to joint defenders only if all were within the 
 sheriffdom, but the Small Debt Act of 1889 went a long way 
 in the direction of the 1907 provision, when it entrusted the 
 Sheriff of a sheriffdom where one or more of several joint 
 defenders resided with a discretion, upon pursuer's motion, to 
 authorise the other defenders to be called in his Court, although 
 they were resident in another sheriffdom, the effect of his 
 granting a warrant tor service upon them being to make these 
 outside defenders also liable to the jurisdiction of the Court 
 where the action was brought. But such a warrant was not 
 granted as matter of course, and the pursuer had to show
 
 488 SMALL DEBT COURT. 
 
 ex facie grounds, and the Sheriff had to consider whether it 
 was, in the circumstances, expedient to so authorise service 
 upon outsiders. The new enactment dispenses with any special 
 warrant. 11 is now a pursuer's right to select the Court of 
 any one of his joint defenders. But in the 1907 Act the Sheriff 
 has been entrusted with ample power to transfer an action to 
 another Court, and this transfer power is also applicable to the 
 Small Debt Court. 
 
 Appendix, s. 6, 45, Rules 19 21. 7 Ed. VII. c. 51, s. 6, 45, Sch. 
 
 1 Vict. c. 41, s. 3. I.. Rule 19. 
 
 52 & 53 Vict. c. 26, s. 3. 
 
 1111. One effect of the application of the jurisdiction 
 clauses of the 1907 Act to the Small Debt Court is to broaden 
 the jurisdiction against firms and corporations. Originally a 
 company could only be served with a Small Debt action at its 
 ordinary place of business within the sheriffdom. This was 
 broadened, in 1889, by the application to the Small Debt Court 
 of the provision of the Sheriff Court Act of 187 G, authorising 
 action against a person or company (notwithstanding his domi- 
 cile might be in another sheriffdom) carrying on a trade or 
 business and having a place of business within the sheriffdom, 
 provided service were made personally or at that place of 
 business. These provisions are repealed, but have been 
 re-enacted upon a broader basis by the Sheriff Courts Acts, 
 1907-1913, which make any person who carries on business 
 within a sheriffdom, and is cited personally or at his place of 
 business, liable to the jurisdiction of that sheriffdom, irrespec- 
 tive of domicile. 
 
 Appendix, s. 6 (6), 45. 52 & 53 Vict. c. 26. s. 5. 
 
 1 Vict. c. 41, s. 3. 7 Ed. VII. c. 51, s. 6 (b). 
 
 39 & 40 Vict. c. 70, s. 46. 2 & 3 Geo. V. c. 28. 
 
 1112. The broadened definition of " person " in the Sheriff 
 Courts Act, 1907, with the relative citation rule, is also appli- 
 cable to the Small Debt Court. Accordingly, any kind of 
 company, or firm, or board, corporate or unincorporate, can 
 now be sued in the Small Debt Court, and that under its 
 business designation alone, service being made in the case of a 
 company, or firm, whether nominate or descriptive, at its 
 principal place of business, if that is within the sheriffdom, 
 and, if not, at any place of business within the sheriffdom, the 
 term " place of business " in the case of a board or corporation
 
 JURISDICTION. lv.i 
 
 including the office or place of business of its clerk or 
 
 secret; try. 
 
 Appendix, s. 45, Rule 11. 7 Ed. VII. c. 51, s. 3 (e), Sch. 
 
 I., Rule 11. 
 
 111-!. Formerly jurisdiction for an action in the Small Debt 
 Court could not bo constituted ;it al] by arrestment ad fundan- 
 dam jurisdictionem. But the limited jurisdiction on this ground 
 recognised by the Sheriff Courts Act, 1877, applied to the Small 
 Debt Court, as now also does the very much broadened pro- 
 visions of the Sheriff Courts Act, 1907. 
 
 Appendix, s. 6 (c), 45. 7 Edw. VII. c. 51, s. G (<:), -T>. 
 
 2. Peocedure. 
 
 111-1. There have also been made applicable to the Small 
 Debt Court the procedure rules of the Sheriff Courts Act, 1907, 
 relating to citation, amendment of pleadings, remits to men 
 of skill, taking evidence to lie in retentis, taking evidence on 
 commission, execution of arrestment, charging a firm or cor- 
 poration, &c. These are, of course, subject to the special pro- 
 visions of the Small Debt Acts, but in the main the general 
 couduct of a litigation does not now greatly differ in the 
 Ordinary Court and the Small Debt Court, the chief remaining 
 distinction being that in the Small Debt Court, with the excep- 
 tion of the summons, there are no formal pleadings, and that 
 there is no record of evidence or of proceedings, the whole 
 procedure being summary, and the only record of the result 
 being the Clerk of Court's entry in the statutory Small Debt 
 Court book. 
 
 Appendix, s. 45, Rules 10-15, 7 Ed. VII. c. 51, Sch. I., Rules 
 
 26, 60, 63, 70, 79, 80, 126, 10-15, 26, 60, 63, 70, 79, 80, 
 
 127, 151. 126, 127, and 151. 
 
 3. Competent Actions. 
 
 1115. Every kind of action competent in the Ordinary Court 
 is not competent in the Small Debt Court, which was instituted, 
 and is still intended, mainly lor the recovery of debts. '1 he 
 statute of 1837 speaks of a " debt, demand, or penalty," it 
 having been intended to use the Small Debt Court as a con- 
 venient means of recovering statutory penalties, the mode of
 
 490 SMALL DEBT COURT. 
 
 recovery of which was ao1 otherwise provided for. But it was 
 not found convenient so to recover statutory penalties under 
 criminal Libels, and such penalties arc now recovered under the 
 provisions of the Summary Jurisdiction Acts. Conventional 
 penalties, and those of the nature of an award of damages to 
 ;in injured party, may he recovered in the Small Debt Court, 
 and some statutory penalties are specially directed to be so 
 recovered, as, Tor example, under tlie Public Libraries Act of 
 1 887 . 
 
 1 Vict. c. 41, s. 2. Glasgow District Railway Com- 
 
 27 & 28 Vict. c. 53. pany v. Hutchison Trustees, 
 
 44 & 45 Vict. c. 33. 1884. 11 R. (J.C.) 43. 
 
 50 & 51 Vict. c. 42, s. 28. 
 
 111G. The phraseology of the Small Debt Act of 1837, 
 strictly regarded, would rather seem to infer that only debts 
 presently due can be recovered in the Small Debt Court, and, 
 under the Act of 1837, dubiety at first existed as to whether 
 future or contingent liability could be determined in the Small 
 Debt Court, as, for instance, periodical aliment or instalments 
 of debt. In practice, however, such debts were recognised as 
 falling within the statute, and the practice of regarding a 
 continuing liability as a proper subject for a Small Debt claim 
 was recognised by the Small Debt Amendment Act of 1889. 
 It is competent, therefore, to sue in the Small Debt Court for 
 such a debt as continuing aliment, and to decern for future 
 payments, so long as the whole sum sued for does not exceed 
 £20. The practice is to decern for equal instalments spread 
 over the period represented by the sum sued for. Under an 
 instalment decree, failure to pay an instalment makes the 
 whole debt decerned for exigible. 
 
 1 Vict, c 41, s. 2. Nixon v. Caldwell, 1876, 3 R. 
 
 52 & 53 Vict, c. 26, s. 9. (J.C.) 31. 
 
 1117. But the latitude so recognised does not warrant the 
 Small Debt Court being utilised for the trial of an issue of 
 another nature than whether a certain debt is due. An action 
 of affiliation and aliment, for instance, when the child is still 
 alive, is not made competent in the Small Debt Court, merely 
 by restricting the amount of aliment claimed to £20, for the 
 main object of such an action is not to recover a debt, but 
 to obtain a judicial declarator of the paternity of a child.
 
 COMPETENT ACTIONS. 491 
 
 1118. If parties are willing to dispense with formal plead- 
 ings, and to waive their appeal rights, the pursuer and defende 
 in any ordinary action may remove their case to the S n i ; » 11 Debt 
 Court, under Rule 61 of the Sheriff Courts Act, 1907. 
 
 Appendix, Rule 61. 7 Ed. VII. c. 51. s. 48. Sch. I 
 
 52 & 53 Vict. c. 26, s. 9. Rule 61. 
 
 1119. The matter of remitting causes from the ordinary to 
 the Small Debt roll, and vice versa, which was under the older 
 statutes left in some confusion, was put upon a clear footing by 
 the Sheriff Courts Act, 1907. In effect, the rule is (a) that 
 of consent of parties, but only of consent, an ordinary action 
 may he remitted to the Small Debt roll; (b) that, either upon 
 nidi ion of a party or by the Sheriff ex proprio motu, a Small 
 Debt action may be remitted to the ordinary roll; (c) that in 
 either case the action takes on the character of the Court to 
 which it is remitted, to all intents, including appeal privileges 
 or restriction s, as the case may be. 
 
 7 Ed. VII. c. 51, s. 48, Sch. I., Price v. Canadian Pacific Rail- 
 
 Rule 61. way Company, 1911, S.C. 631. 
 
 1120. In some cases, it is not ex facie apparent whether a 
 claim is one for a due debt, or one for an accounting. A claim 
 upon a debit and credit account, for instance, bringing out a 
 balance due to the pursuer may be ex facie a debt or demand, 
 which may be sued for in the Small Debt Court. But, if the 
 real issue between parties is whether defender is bound to count 
 and reckon with the pursuer, then it is not competent in the 
 Small Debt Court, for an action of count, reckoning, and 
 payment is appropriate only in the Ordinary Court, in the form 
 of an ordinary action. 
 
 4. Actio x of Delivery. 
 
 1121. An action ad factum prcestandum is not competent in 
 the Small Debt Court, with the single exception of the action 
 of delivery, which was made competent by the Small Debt Act 
 of 1889. The subject of such an action is "corporeal tnove- 
 " ables," a term which includes all article- which are capable 
 of being taken tangible possession of, but does not include 
 debts, or such moveable property as a patent right, or any 
 other kind of property not capable oJ being handled and moved
 
 492 SMALL DEBT COURT. 
 
 from one place to another. The action is competent only if the 
 ralue of the entire moveables of which delivery is sought does 
 not exceed 620, and it is competent, although not imperative, to 
 sue alternatively Eor the money value of the articles claimed. 
 
 52 & 53 Vict. c. 26. s. 2. 
 
 1122. It is not competent to modify the value to make 
 competent an action of delivery which would otherwise not be 
 competent in the Small Debt Court, as in the case of a debt 
 which, although greater than £20, may, if pursuer elects to 
 waive his right to the amount over thai sum, be modified to 
 £20, and sued for in the Small Debt Court. The pursuer must 
 satisfy the Court that the value does not exceed £20, for the 
 Sheii if can entertain an action only for delivery of articles 
 " the value of which shall be proved to the satisfaction of the 
 " Sheriff not to exceed " £20. In practice, however, value 
 competency is assumed, if the action is unopposed, and. if 
 contested, the pursuer's oath may possibly be sufficient com- 
 pliance with the statute, or the value may be vouched, without 
 oral evidence at all, by the production of documents, or by 
 remit to a man of skill, or remit to the Clerk of Court for 
 inquiry and report. The pursuer must elect whether to take 
 decree for delivery, or decree for payment of the money value. 
 It is not competent, in one decree, to decern against a defender 
 to deliver, and, failing delivery, to pay. Pursuer must inti- 
 mate his election, and state whether he craves decree ad factum 
 prcestandum or for payment. He cannot have both, nor can 
 he have the one alternatively to the other. But it is often 
 convenient, after the merits have been decided upon, to continue 
 the case for a short period to permit of the form of decree being 
 adjusted between the parties. If the moveables are extant, 
 pursuer is entitled always to decree of delivery, but, if delivery 
 is not possible, and he h;is an alternative money craving, his 
 summons will be satisfied by a decree for the proved valued. 
 
 Dalbocca v. Millar, 1905, 21 S.C.R. 183. 
 
 1123. The Sheriff Courts Act, 19U7, set at rest a point of 
 practice as to the execution of a Small Debt decree of delivery 
 in regard to which there was difference of opinion. The form 
 of decree in the Small Debt Act of 1889 simply authorised 
 " all lawful execution." In some Courts it was held that the 
 decree was itself a warrant to imprison, failing delivery. In
 
 ACTION OF DELIVERY. t93 
 
 others it was held thai a fial inusl be obtained in the manner 
 
 provided by the Debtors (Scotland) Act, 1838. The recent 
 
 statute expressly provides thai a fial is not necessary, bul thai 
 
 such decrees are enforceable by imprisonmenl under the 
 
 warrant in the Small Debt decree itself. If the defender was 
 
 present when the decree of delivery was pronounced, he requires 
 
 no charge, the decree being- enforceable after (lie lapse of ten 
 
 days; but, if he were absent, he musl firsl be charged upon a 
 
 ten-days' inducise. 
 
 Appendix, s. 46. 7 Ed. VII. c. 51, s. 46. 
 
 1 Vict <• 41, s. 13. Stewart v. M'Dougall (1907), 
 
 1 & 2 Vict. c. 114. s. 10, 11. 1908, S.C. 315. 
 
 52 & 53 Vict. c. 26, Sch. B. 
 
 5. ClTATIOX. 
 
 L124. A Small Debt action is commenced by a summons, in 
 the form of Schedule A of the Small Debt Act, 1837. It sets 
 forth the names of the pursuer and defender, and any special 
 character in which he sues or is sued, with a brief statement 
 of the claim or demand, and the grounds of it, and it calls 
 upon the defender to answer at a set diet. The Small Debt 
 summons contains also warrant to cite witnesses and havers, 
 and warrant to arrest on the dependence. It is signed by the 
 Sheriff-clerk. The summons itself is a sufficient warrant for 
 the citation of the defender, and also for citing witnesses and 
 havers. Citation may be made in any manner competent in 
 the case of an ordinary action; but, under the Small Debt Act 
 of 1837, citation, if made by an officer, does not require the 
 presence of a witness, as is necessary in an ordinary action. 
 1 Vict. c. 41, s. 3, Sch. A. 
 
 1125. A detailed statement of account must be served along 
 with the service copy of the summons. But if the defender 
 has already had a statement furnished to him, it may suffice 
 to incorporate that account by reference, as, for instance. 
 "Goods as per pass-book in defender's possession.'' Certain 
 kinds of debts which are in use to be stated in a slump sum. 
 as, for instance, a medical man's account, may be sufficiently 
 libelled as, say, "professional services during the year." In 
 such a case, if details are called for, the practice is not to 
 dismiss the summons as insufficiently stated, bul to continue 
 the case to a future diet, that details may be furnished. 
 Mowat v. Martine, 1856, 2 Irv. 435.
 
 494 SMALL DEBT COURT. 
 
 112(i. The minimum inducise of citation ii])on a Small Debt 
 
 summons is six days. The provish t the Sheriff Courts 
 
 Act, L907, empowering the Sheriff to shorter] or extend the 
 inducise in an ordinary action is not one of the provisions 
 which are extended Id the Small Debl Court, and there is no 
 power under the Small Debt Acts themselves to shorten the 
 Lnduciae. It is competent, however, to extend it. and in 
 edictal citation, which now applies to the Small Debt Court, 
 the inducise is always fourteen days. In actions of furth- 
 coming and multiplepoinding there is a special inducise of 
 eleven days, under the Small Debt Act, 1 8-JT , when the 
 common debtor is not within the sheriffdom. In some 
 circumstances, although the service is not edictal, it may bo 
 desirable to extend the inducise beyond the normal six days, 
 but in practice it is not usual to do so. Circumstances which 
 make it expedient to shorten the inducise are of much more 
 frequent occurrence than circumstances which make it 
 desirable to extend it, and it is to be regretted that the 
 general power of the 1907 Act as to shortening inducise, with 
 a minimum of forty-eight hours, has not been extended also 
 to the Small Debt Court. 
 
 Appendix, s. 45, Rules 10-15. 7 Ed. VII. c. 51, s. 45, Rules 
 
 1 Vict. c. 41, s. 3, 9. 10-15. 
 
 52 & 53 Vict. c. 26, s. 5. 
 
 (i. Arrestment. 
 
 1127. Arrestment on the dependence of a Small Debt 
 action, if not executed personally, is not effectual against the 
 arrestee, unless the officer send by post, to the last known place 
 of abode of the arrestee, a copy of the schedule of arrestment, 
 and certify in the execution of arrestment that he has done 
 so. If the place of abode is unknown, or if the arrestee is a 
 firm or corporation, the postal intimation is made at the 
 arrestee's principal place of business if known, or, if not 
 known, at any known place of business of the arrestee, the 
 officer in like manner setting forth in his execution the address 
 to which intimation by post was sent. In this matter, there 
 is no difference between Small Debt and Ordinary Court 
 arrestment. But in the matter of recall of arrestment the 
 procedure differs. In the Small Debt Court, a special 
 application to the Sheriff for recall is not necessary, and the
 
 AKUKST.MKXT. 1,95 
 
 procedure is in the bands of the Sheriff-clerk. The defender, 
 upon consigning the amounl of the claim, and a sum for 
 expenses, in the hands of the Sheriff-clerk of either the 
 sheriffdom where the arrestmenl has been used, or the 
 sheriffdom where the action is pending, or upon finding 
 caution to the satisfaction of such Sheriff-clerk Eor the amounl 
 of pursuer's claim and expenses, may obtain from the Sheriff- 
 clerk a certificate, which operate- as a warrant for Loosing 
 arrestments. 
 
 Appendix, Rule 126. 52 & 53 Vict. c. 26, s. 5 (5). 
 
 1 Vict. c. 41, s. 8, Sch. C. 7 Ed. VII. c. 51. Rule 126. 
 
 7. Mtjxtiplepoinding. 
 
 1128. An action of multiplepoinding may proceed in the 
 Small Debt Court, where the fund, or the value of the subject, 
 in medio docs not exceed £20. Formerly such an action 
 required to be brought in the Court to the jurisdiction of 
 which tlie holder of the fund was amenable; but, as the 
 jurisdiction clauses of the Sheriff Courts Act, 1907, apply to 
 the Small Debt Court, it is now also competent to bi ing such an 
 action in the sheriffdom where the fund or subject is situated. 
 That a fund or subject is claimed by more than one person, 
 under competing arrestments or otherwise, is the statutory 
 ground upon which a Small Debt action of multiplepoinding 
 may be competently based. The procedure is regulated bv 
 the Small Debt Act of 1837, under which the matter of 
 intimation, by newspaper advertisement or otherwise, is left 
 in the discretion of the Sheriff, the general direction being 
 that all interested parties are to have an opportunity of 
 claiming upon the fund in medio, and that judgment preferring 
 a claimant is not to be given at the first calling. In practice, 
 the competency of the action, and the existence of the Eund 
 in medio, are usually inquired into at the tiist calling, and 
 the case is then continued to a future Court to hear claimants, 
 parties meantime being ordered to lodge claims. The 
 designation of the real raiser must be set forth in the summons, 
 and he may be allowed his expenses preferably out of the 
 fund. 
 
 Appendix, 6 (g), 45, Rules 128, 7 Edw. VII. c. 51. s. (i (7), Sch. 
 
 129. I., Rules 128, 12!1. 
 
 1 Vict. c. 41, s. 10, Sch. E.
 
 496 SMALL DEBT COURT. 
 
 8. Furthcoming. 
 
 112!). An action of furthcoming may, in like manner, be. 
 competently brougJri in the Small Debt Court, where the sum 
 sough! to be recovered under the furthcoming does not exceed 
 £20, and this action also may be brought either in the Court 
 to whose jurisdiction the arrestee or holder of tin; fund is 
 amenable, or in thai within whose jurisdiction the ;irrested 
 fund is situated, irrespective of where the common debtor may 
 reside As in a multiplepoinding, so also in a furthcoming, 
 the procedure is regulated by the special directions of the 
 Small Debl Art of 1837; and in the Small Dem Court, as 
 in the Ordinary Court, the expenses of bringing the action of 
 furthcoming may now be treated as part of the ancestor's 
 claim, and may be made good out of the arrested fund if it is 
 sufficient. If not, the common debtor remains liable for this 
 expense. 
 
 Appendix, s. 45, Rules 128, 129. 7 Edw. VII. «■. 51, s. (i (g), Sch. 
 
 1 Vict. c. 41, s. 9. Sch. D. I., Rules 128, L29. 
 
 9. Sequestration for Bent. 
 
 11-30. The Small Debt Act of 1837 also contains special 
 directions for the process of sequestration for rent, and these, 
 accordingly, regulate the procedure when the rent, or balance 
 of rent, claimed does not exceed £20. Sequestration is 
 competent either currente tevmino or in security. The goods 
 MMpiestrated are inventoried by an officer and appraised by 
 " two persons " selected by the officer. These need not neces- 
 saiily be skilled appraisers, although it is better that they 
 should be. They should be sworn, as the form of report of 
 sale bears that the goods were "appraised on oath." An 
 inventory and appraisement is left with the tenant, and the 
 execution must be returned by the officer to the Sheriff-clerk 
 within three days. At the calling of the cause the Sheriff 
 may (a) recall the sequestration in whole or in part; or (b) 
 grant decree and warrant of sale for past due rent found due; 
 or (c), if the action is in security, continue the cause till a 
 Court day after the term. The Sheriff may give special 
 directions as to the carrying out of the sale proceedings. In 
 the absence of such directions, the sequestrated goods are
 
 SEQUESTRATION FOR RENT. 197 
 
 carried to the cross or most public place in the town or village, 
 or the nearest town or village, and sold by public roup between 
 the hours of eleven and Unco, after at Least two hours' notice 
 by the town crier. The surplus, if any, arising upon the 
 sale, after paying the sums decerned for and expenses, the 
 officer returns to the owner of the goods, or, if the owner 
 cannot be found, consigns with the Sheriff-clerk. Such a 
 consigned fund is arrestable in the hands of the Sheriff-clerk. 
 The effects cannot be sold for less than tho appraised value. 
 If they are not sold at that, or a greater, value, they are 
 delivered to the creditor in satisfaction pro tanto of his decree 
 and the expenses, and within eight days the officer must report 
 the proceedings to the Sheriff-clerk. A warrant of sequestra- 
 tion now covers authority to the officer to open shut and 
 lockfast places if necessary. 
 
 Appendix, s. 43. Le Conte v. Douglas, 1880, 8 R. 
 
 1 Vict. c. 41, s. 5-20, Sch. B, G. 175. 
 
 52 & 53 Vict. c. 26, s. 7. Gatherar v. Miiirhead & Turn- 
 
 7 Ed. VII. c. 51, s. 43. bull, 1909, 25 S.C.R, 357. 
 
 1131. The statutory directions for carrying out a sale in a 
 sequestration apply also to poinding and sale, the proceedings 
 in which are of the like summary nature, with the like wide 
 discretion to the Sheriff as to fixing and intimating the time 
 and place of sale. In practice, this discretion is frequently 
 exercised by appointing the goods to be sold where they lie, 
 or at a public auction mart, or other place appropriate to the 
 class of goods. 
 
 1 Vict. c. 41, s. 20. 
 
 1132. Upon a Small Debt sequestration summons, a 
 warrant may be obtained to eject a tenant who has displenished 
 the house. A warrant of sale having been granted for the rent, 
 and an officer having reported that the premises are dis- 
 plenished, the Sheriff will grant warrant to the landlord to 
 eject the tenant and re-let the premises. Notice of at least 
 forty-eight hours of the landlord's intention to ask an eject- 
 ment warrant is given to the tenant, by registered letter sent 
 to his last known address. If the tenant appears, he is lieard, 
 but the proceedings are summary. A tenant who has dis- 
 plenished premises very seldom does appear, and in practice 
 32
 
 ins SMALL DEBT COURT. 
 
 the warrant to eject is granted upon the expiry of the induciie 
 of notice. 
 
 52 & 53 Vict. c. 26, s. 6. 
 
 10. SlST. 
 
 1133. In the Small Debt Court a decree inadvertently 
 granted in absence may be opened up very simply, diligence 
 upon it being meantime suspended. The procedure is, of 
 course, capable of abuse, for an impecunious debtor, at the cost 
 of a few shillings, might stave oil' the day of reckoning, by 
 allowing decree to pass in absence, and immediately taking 
 out a sist, which, in a district Court, where the Small Debt 
 sittings are infrequent, might give him a respite of some 
 weeks. The procedure, however, is of great convenience in 
 many cases where decree is granted really by inadvertence. 
 In a Small Debt Court, where the roll is heavy and the pro- 
 cedure is expeditious, a party may happen not to be at band 
 just at the moment his case is called; or, if he is there, he may, 
 from inattention or inexperience, fail to notice that his case 
 has been called, and so fail to answer. If decree in absence 
 has been granted, the party decerned against may, by consign- 
 ing with the Sheriff-clerk the expenses decerned for, and a 
 further sum of five shillings in the case of a pursuer, and ten 
 shillings in the case of a defender, to meet further expenses, 
 obtain a warrant sisting the case for a future Court day, and 
 authorising the citation of witnesses for that day. Service of 
 the sist brings up the case on the future Court day to the same 
 effect as if it had been a new case in the roll for that day. 
 
 1 Vict. c. 41, s. 16. 
 
 1134. A sist is only competent in a case in which litis 
 contestation has not taken place. What is litis contestation is 
 a question of circumstances. If at the first calling the case 
 has been adjourned simpliciter, a decree granted at a subse- 
 quent diet may be sisted; but if the merits of the cause are 
 entered upon at the first diet, as, for instance, if a preliminary 
 plea, such as no jurisdiction, or that the action is incompetent, 
 is stated and repelled, and a party then fails to appear at an 
 adjourned diet, the decree then granted is a decree in foro, 
 not a decree in absence, and a sist is not competent, Even if
 
 SIST. 499 
 
 the decree is one in which a sist is competent, il cannot be 
 sisted if it lias been implemented. Poinding is implement, 
 
 but arrestment is not. 
 
 Wyllie v. Lawson, 1863, 4 Irv. Oliver r. Simpson, 1 F. (J.C.) 12. 
 
 44. Netherwood v. Scott, 1907, 24 
 
 M'Neil r. M'Neil, 1891, 18 R. S.C.R. 39. 
 
 (J.C.) 38. .Murray v. Adams, 1909, 25 
 
 Montgomery v. Loughran, 1891, S.C.R. 152. 
 
 18 R. (J.C.) 25. 
 
 11. Law Agents. 
 
 1135. Formerly law agents were debarred from appearing 
 in the Small Debt Court, unless by leave of the Court upon 
 special cause shown, but in all cases a party might be repre- 
 sented by " one of his family, or by such person as the Sheriff 
 " shall allow." It is still competent to be so represented, 
 but law agents have now also right of audience, the 1889 Small 
 Debt Act having first authorised a law agent to appear where 
 " the Sheriff is of opinion that his employment was necessary.'* 
 and this qualified privilege having, in the Sheriff Courts Act, 
 1907, been supplanted by an untrammelled provision that, in 
 the Small Debt as in the Ordinary Court, an agent may conduct 
 a party's case, the cost of agency being party and party costs. 
 
 Appendix, s. 44. 52 & 53 Vict. c. 26, s. 8. 
 
 1 Vict. c. 41, s. 14, 15. 7 Ed. VII., c. 51, s. 44. 
 
 12. Judgment. 
 
 113G. But, whether law agents are employed or not, the 
 whole proceedings in the Small Debt Court are summary in 
 their nature. If the defender do not appear, decree in absence 
 may be granted against him. If the pursuer do not appear, 
 the defender is entitled to decree of absolvitor; but such a 
 decree need not necessarily be granted, for the Sheriff has a 
 discretion to adjourn the case to a subsequent Court day, and 
 there may be a good reason for the non-attendance of any party. 
 There is no distinction in the Small Debt Court, as in the 
 Ordinary Court, between a decree by default and a decree in 
 absence. If the defender is not present, or represented, at the 
 diet at which the judgment is pronounced, it is a decree in 
 absence, necessitating a charge. The provisions as to protesta- 
 tion and reponing in the Ordinary Court do not apply to the
 
 500 SMALL DEBT COURT. 
 
 Small Debt Court. If judgment is given in the absence of 
 either party, the Small Debt Act of 1837 provides a remedy 
 by sist. 
 
 1 Vict. c. 41, s. 15, 16. 
 
 1137. The only official record of proceedings in the Small 
 Debt Court is the entries in the statutory book of causes, which 
 must contain (a) the designations of the parties; (b) their 
 appearance or non-appearance; (c) the claim or demand made; 
 (<I) the mode of citation ; {e) the judgment. The roll of causes 
 to be tried on each Court day must be exhibited to the public 
 on a patent part of the Court-house, at least an hour before 
 the sitting of the Court, and must remain exhibited during the 
 sitting. The Sheriff-clerk, or a Court officer, is required to 
 " audibly call the causes in such roll in their order." The 
 judgment is pronounced orally in Court, but, in cases of 
 importance, the judgment is sometimes delayed, in which event 
 the cause, after hearing, may be adjourned to a convenient 
 future date for judgment; or the Sheriff may simply make 
 avizandum, in which case he must give judgment within seven 
 days. 
 
 1 Vict. c. 41, s. 17. 52 & 53 Vict. c. 26, s. 10. 
 
 1138. The decree in a Small Debt action is endorsed upon 
 
 the summons, and in practice the whole proceedings are 
 
 embodied in one printed paper. If this should happen to go 
 
 amissing, there was formerly no remedy. But the Small Debt 
 
 Act of 1889 incorporated the provision of the Sheriff Court Act 
 
 of 1876, authorising a copy to be substituted for a lost pleading. 
 
 This, however, did not cover the most important element, for 
 
 it did not embrace a lost decree. The Sheriff Courts Act of 1907 
 
 authorises the issue of a second extract of a Small Debt decree, 
 
 "which extract may be written upon a separate paper, and 
 
 " shall have the same force and effect in all respects as the first 
 
 " extract." 
 
 Appendix, s. 47. 52 & 53 Vict. c. 26, s. 5. 
 
 39 & 40 Vict. c. 70, s. 11. 7 Ed. VII. c. 51, s. 47. 
 
 1139. Formerly, when the pursuer in a Small Debt action, 
 during its dependence, died, or assigned the debt, or became 
 bankrupt, the executor or assignee or trustee in bankruptcy
 
 JUDGMENT. 501 
 
 bad to bring a fresh actios against the debtor. Hut the Small 
 Debt Act of 1889, in such as event, authorised the representa- 
 tive or assignee or trustee to be sisted as pursuer, upon a verba] 
 application to the Sheriff, made in Court. In like manner thai 
 statute authorised execution of a decree at the instance of a 
 representative, or assignee, or trustee, who had acquired the 
 pursuer's interest after decree. But in this case no formal 
 application to the Sheriff is necessary. It is enough that the 
 party in right of the decree produce to the Sheriff-clerk the 
 extract of the decree, and the evidence of his title to enforce it, 
 and the Sheriff-clerk endorses a fiat upon the extract, which 
 is sufficient warrant for diligence at the instance of the repre- 
 sentative, or assignee, or trustee, as the case may be. 
 52 & 53 Vict. c. 26, s. 4, 5. 
 
 13. Defence by Exception. 
 
 1140. Formerly there was a conflict of opinion as to whether 
 
 the Sheriff sitting in the Small Debt Court could go behind 
 
 a document pled in the cause, or whether the Small Debt 
 
 action must be delayed till a process of reduction had been 
 
 brought in the Court of Session. In most Courts the view was 
 
 adopted that the useful provision of the Sheriff Court Act, 
 
 1877, enabling a document founded upon in a Sheriff Court 
 
 process to be challenged ope exceptionis, although not speeiallv 
 
 declared to be applicable in the Small Debt Court, really was 
 
 applicable, for the Sheriff, as a summary judge in the Small 
 
 Debt Court, had a wide discretion to do what the justice of 
 
 the case required. All doubt on the subject has now been set 
 
 at rest by the express enactment of the Sheriff Courts Act, 
 
 1907, that llule 50 of the procedure schedule applies in the 
 
 Small Debt Court; so that in the Small Debt Court, as in the 
 
 Ordinary Court, "when a deed or writing is founded on by 
 
 " any party in a cause, all objections thereto may lie stated and 
 
 "maintained by way of exception without the necessity .if 
 
 " bringing a reduction thereof." 
 
 Appendix, s. 45, Rule 50. 7 Ed. VII. c. 51, s. 45, Sch 1 
 
 40 & 41 Vict. c. 50, s. 11. Rule 50. 
 
 14. CouNTEB Claim! 
 
 1141. Defence by way of counter claim is in a somewhat 
 different position in the Small Debt Court from the same
 
 502 SMALL DEBT COURT. 
 
 defence in the Ordinary Court. The Sheriff Courts Act, 
 L907, provides thai a defender may state a counter claim in 
 his defences, "and (lie Sheriff may thereafter deal with it as 
 ■• it it bad been stated in a substantive action, and may granl 
 "decree £or it in whole or in part, or for the difference between 
 "it and the claim sued on." An ordinary action, therefore, 
 tor a money claim which is met by a counter money claim may 
 now result in decree in favour of cither the pursuer or of the 
 defender, according as the pursuer's claim or the defender's 
 counter claim turns out to be the larger, and that without the 
 defender doing- more than set forth his counter claim in the 
 defences. This is one of the 1907 provisions which are, "so 
 " tar as appropriate," made applicable to the Small Debt Court, 
 but in this matter it would not be appropriate that the 
 defender's counter claim should merely be stated verbally at 
 the first calling (which is the Small Debt equivalent to giving 
 in defences in an Ordinary Court process), because the 
 pursuer would get no prior notice of it. As there are no 
 written defences in a Small Debt process, there appears to be 
 no means of pleading a counter claim, except (a) serving a 
 counter Small Debt action, or (6) serving a counter claim in 
 the manner prescribed by the Small Debt Act of 1837, thai is, 
 at least one free day before the day of appearance. When 
 the defender's counter claim is not larger in amount than the 
 pursuer's claim as stated in the summons, service of a counter 
 claim is the cheaper, and the more convenient, and so most 
 commonly adopted method, because the counter claim so 
 served is pled only by way of set-off. But, when the defender 
 wants to do more than merely extinguish or diminish the 
 pursuer's claim by a set-off, and seeks to recover from pursuer 
 a sum larger than the sum sued for, then the defender should 
 state his counter claim in the form of a substantive action. 
 The counter claim must he a debt or demand. An illiquid 
 claim of damages is not a competent counter claim to a money 
 demand which is not itself disputed. 
 
 Appendix, Rule 50. Johnstone r. M 'George, 1907, 24 
 
 1 Vict c. 41, s. 11. S.C.R. 83. 
 
 7 Fd Vll c 51, s. 45, Sch. I., Simmons v. Miller, 1909, 25 
 
 Rule 50. S.C.R. 122. 
 
 Taylor v. Ormond, 1906, 8 F. Christie v. Birrells, 1910, S.C. 
 
 (J.C.) 76. 986. 
 
 1142. A counter claim may be served in the manner 
 prescribed by the Small Debt Act, notwithstanding that the
 
 COUNTER CLAIM. 503 
 
 defender is a foreigner, or ;i person resident or carrying od 
 business in another sheriffdom. The origina] direction of the 
 Smal] Deb1 Act oi 1837 was thai the counter claim was to be 
 served upon the pursuer by an officer. lint the Citation 
 Amendment Act of L882 extends to service of a counter claim, 
 so thai it may also be served by post. Formerly difference oi 
 opinion prevailed as to whether the process doctrine of 
 reconvention applied to the Small Debt Court. But the Sheriff 
 Courts Act. 1!)07. explicitly makes it applicable, so thai a 
 counter claim may now be served upon any pursuer in the 
 Small Debt Court, and whatever mode of service is competent 
 at pursuer's instance againsl defender, that also is competent 
 at defender's instance against pursuer. If service of a counter 
 claim is upon a longer induciae than that of the Small Debt 
 summons, as, for instance, where the pursuer is a foreigner 
 and the service is edictal, the summons will at the first calling 
 be adjourned for hearing to a Court on a date after the expiry 
 of the counter claim Lnduci®. 
 
 Appendix, s. 6 (/<), 45. 45 & 46 Vict. c. 77. 
 
 1 Vict. c. 41, s. 11. 7 Ed. VII. c. 51, s. 6 (h), 45. 
 
 114U. It is not quite clear whether a counter claim for 
 payment of money cau be pleaded in a Small Debt action of 
 delivery and vice versa. There seems no reason why this 
 should not be competent, but, of course, if the counter claim 
 is sustained, the one claim cannot be set against the other, and 
 decree given for the balance, as in the case of two money 
 claims. The judgment of the Court would take the form of 
 a decerniture against the one party for delivery, and a 
 decerniture against the other for payment. 
 
 Appendix. Rule 55. Rollanda r. Rolland, 1907, 44 
 
 1 Vict. c. 41, s. 11. S.L.R. 770. 
 
 52 & 53 Viet. c. 26, s. 2. Bernstein v. Holloway, 1909, 2b 
 
 S.C.R. 32. 
 
 15. Witnesses. 
 
 1144. The practice as to citation of witnesses and havers 
 in the Small Debt Court is practically the same as in the 
 Ordinary Court. In neither case is the warrant required to 
 be endorsed by the Sheriff-clerk of the jurisdiction where the 
 witness is to be cited, and in both cases the warrant may he 
 executed either by an officer of the Court which granted the
 
 504 SMALL DEBT COURT. 
 
 warrant or by an officer of the sheriffdom within which it is 
 to be executed. For cadi Court, the minimum inducia? of 
 citation is forty-eight hours, and letters of second diligence 
 may be granted, to compel the attendance of a witness or 
 haver who tails to answer to the citation. But in the Ordinary 
 Court second diligence cannot be craved anain-t a defaulting 
 witness if lie had. before responding, demanded his travelling 
 expenses, and these had not been tendered. The privilege of 
 claiming prior payment of travelling expenses does not seem to 
 extend to witnesses cited for the Small Debt Court. 
 
 Appendix, Rules 10, 73. 7 Ed. VII. c. 51. Sch. I., Rules 
 
 1 Vict. c. 41, s. 2, 12. 10, 73. 
 
 1G. Diligence. 
 
 1145. The proceedings in execution of a decree are not 
 materially different in Ordinary Court and Small Debt Court 
 practice. In each the extract decree is a warrant for execu- 
 tion by arrestment, or by poinding and sale, or by imprison- 
 ment if competent; but in the Ordinary Court, whether the 
 action is defended or not, execution of diligence must always 
 be preceded by a seven-days' charge: whilst in the case of a 
 Small Debt decree, although at least ten days must always 
 elapse before execution, a charge is requisite only if the 
 defender were not present when decree was pronounced. 
 
 1 Vict. c. 41, s. 13. 
 
 1146. In the matter of charge, there is a privilege peculiar 
 to a Small Debt decree. The Sheriff Courts Act, 11)07, has 
 introduced postal charge in the case of the Small Debt decree, 
 a mode of charge which is not competent under an Ordinary 
 Court decree. Where a charge has to be given upon a Small 
 Debt decree, at a place distant more than 12 miles from the 
 seat of the Court where the decree was granted, the charge 
 may be given by post, in the manner prescribed by the Citation 
 Amendment Act of 1882. The Interpretation Act of 1889 
 provides that distance "shall, unless the contrary intention 
 "appears, be measured in a straight line on a horizontal 
 "plane." The "manner" prescribed by the Citation Act 
 includes postal citation by a law agent, so that, to the limited 
 extent to which postal charge is competent, a law agent seems 
 now for the first time to be empowered to execute a charge.
 
 DILKJKNCM 505 
 
 But postal charge has obvious dangers, and should be 
 used only when the expense of charging by officer in the 
 usual way is excessive, having relation to the amouni involved. 
 When i( is used, the greatest care should be observed, and 
 every precaution taken to ensure that the posl letter reaches 
 the person to whom the charge is to be given. 
 
 Appendix, s. 49. 7 Ed. VII. c. 51, s. 49. 
 
 52 & 53 Vict. c. 63, s. 34. 
 
 17. An peal. 
 
 1147. The judgment of the Sheriff-Substitute in the Small 
 Debt Court is not appealable to the Sheriff, nor is the judg- 
 ment subject to review at all, except to the limited extent 
 allowed by the Small Debt Act of 1837, which sanctions a 
 Small Debt decree being submitted to review of the High 
 Court of Justiciary at the next ensuing circuit sitting, or, 
 where there are no Circuit Courts, at Edinburgh, but that 
 only upon the grounds of (a) corruption or malice or oppres- 
 sion on the part of the Sheriff; or (b) such deviations in point 
 of form from the statutory enactments as the Court shall think 
 took place wilfully, or have prevented substantial justice being 
 done; or (c) incompetency, including defect of jurisdiction. 
 The terms of the Sheriff Courts Act, 1907, making suspension 
 competent in the Sheriff Court are sufficiently broad to 
 apparently include a Small Debt Court decree, but that is 
 qualified by the provisions of the Small Debt Act of 1837, 
 which expressly bars suspension or reduction of a Small Debt 
 decree. Unless, therefore, the irregularities are so serious 
 as to bring the case within the scope of the Justiciary Court 
 appeal, a Small Debt decree is not subject to review at oil, 
 and in practice the proportion of Small Debt judgments which 
 are appealed is very trilling. 
 
 1 Vict. c. 41. s. 30, 31. 7 Ed. VII. c. 51, s. 5 (5). 
 
 1148. When an appeal is competent, it may be taken in 
 open Court at the time of judgment, or it may be lodged 
 with the Sheriff-clerk within ten days. In practice, the form 
 most commonly adopted is a minute, setting forth the grounds 
 of appeal, which must be served upon the opposite party, and 
 also upon the Sheriff who gave the judgment, if his conduct 
 is impugned, at least fifteen days before the diet of the
 
 506 SMALL DEBT COURT. 
 
 Justiciary Court. The appellant must find caution, to the 
 satisfaction of the Sheriff-clerk, to abide by the judgment of 
 the Circuit (Hurl, and in pay the costs, if any, awarded against 
 him. Failing caul inn being duly found, the Sheriff-clerk 
 may give out the extract. 
 
 20 Geo II. G 43. Art of Sederunt, 10th July. 
 
 1 Vict. c. 41, s. 31. 1839, s. 132, 133. 
 
 18. Employees and Workmen Disputes. 
 
 1149. The Small Debt Court has a special statutory duty, 
 as regards disputes arising between employers and workmen, 
 when the value of the dispute does not exceed £10. Under the 
 Employers and Workmen Act of 1875, a Court of summary 
 jurisdiction (which in Scotland means the Small Debt 
 Court) is invested with very useful powers to settle small 
 industrial disputes, including power to grant a money decree 
 against an employer or a workman, and, as regards an appren- 
 tice, to order him to perform his contract duty under pain of 
 imprisonment; or to require him to find caution for the due 
 performance of his duties; or to rescind the contract, and 
 decern against the employer for repayment of any apprentice- 
 ship premium which may have been paid. 
 
 38 & 39 Vict. c. 90. Act of Sederunt, 29th January, 
 
 1876. 
 
 1150. The value test is so small, and remedies which this 
 statute is designed to afford may in Scotland be so readily 
 effected under the ordinary procedure of the Courts, that this 
 statute is not greatly resorted to. Its powers are, 
 however, not infrequently exercised incidentally, in cases 
 where the subject of dispute is wages. Domestic servants, 
 seamen, and sea apprentices are excluded from the definition 
 of " workman." An apprentice is also excluded if he has paid 
 a premium exceeding £'25. 
 
 38 & 39 Vict. c. 90.
 
 CHAPTEE XXIV. 
 THE POOR ROLL. 
 
 1. PXJEPOSE. 
 
 1151. It is a recognised principle of judicial procedure in 
 the Courts of Scotland that no person accused of crime should, 
 on account of his inability to pay for legal advice, be deprived 
 of such aid; and also that any one having an ex facie legal 
 civil claim or demand to enforce, or a defence to set up to a 
 claim or demand made against him, should be enabled to pursue 
 or defend, despite his poverty. Accordingly, the practice of 
 the Courts from the earliest times has been to assign to selected 
 members of the bar the duty of defending poor accused persons 
 and also the duty of suing and defending civil causes ou behalf 
 of poor persons. The regulations for effecting this object in 
 the Sheriff Court are now set forth in the Sheriff Courts Act, 
 1907, which, in substance, re-enacts the regulations of the 
 Acts of Sederunt of 1839 and 1877, with some important 
 alterations. 
 
 Appendix, Rules 152, 169. Act of Sederunt, 1839, s. 134, 
 
 Act 1424, c. 45. 136. 
 
 7 Ed VII. c. 51, s. 51, Sch. I., Act of Sederunt, 16th January, 
 
 Rules 152, 169. 1877. 
 
 1152. In the Criminal Court, no formality of application for 
 the benefit of the poor roll is insisted in, the general practice 
 being for the presiding Sheriff to assign to an agent who is 
 present the duty of advising the prisoner^ and conducting his 
 defence. In most Courts, the duty of acting as agents for the 
 poor is taken by the enrolled law agents in rotation, according 
 to their enrolment, each agent serving for a year at a time, and 
 the agents for the poor for the time being themselves arranging 
 for one or more of their number as may be necessary attending 
 the sittings of the criminal Courts, in order to afford legal 
 assistance to the poor prisoners. Official certification of the
 
 508 THE POOR ROLL 
 
 prisoner's inability to pay for legal advice is not in practice 
 insisted upon. 
 
 2. Certificate of Poverty. 
 
 1153. But in civil causes there are regulations designed to 
 ensure that the privilege of suing or defending in forma 
 pauperis is accorded only to persons genuinely entitled to it. 
 Accordingly, no person can so sue or defend, without first 
 having obtained a certificate of poverty, and having his case 
 inquired into and reported upon by the agents for the poor, and 
 thereafter obtaining the sanction of the Sheriff. 
 
 Appendix, Rules 162, 169. 7 Ed. VII. c. 51, s. 51, Sch. I., 
 
 11 Rules 162, 169. 
 
 1154. Formerly the certificate of poverty could be granted 
 only by (a) the minister of the parish within which the appli- 
 cant resided ; or (b) two elders of that parish kirk session ; or 
 (c) the heritor upon whose lands the applicant dwelt. The 
 grantor of the certificate was presumed to testify to the poverty 
 of the applicant upon information derived otherwise than from 
 the applicant himself. But, as regards the great majority of 
 persons desiring to obtain the privilege of the poor roll, 
 especially in congested areas, church officials were the class 
 least likely to be in touch with them, and probably no class 
 of persons could have been selected who were less likely to 
 be able of their own knowledge to testify to the qualification 
 of an applicant. A certificate testifying to the best of the 
 grantor's knowledge and belief was, however, sufficient, and 
 it is to be feared that such certificates were often very loosely 
 granted. 
 
 Dickson, 1852, 24 Jur. 154. 
 
 1155. The palish minister, elders, and heritors are now 
 relieved of this duty, for, under the Sheriff Courts Act of 
 1907, the only person \\ ho can now giant a certificate of poverty 
 is the inspector or assistant inspector of poor of the parish 
 where the applicant resides. That, however, does not, of 
 course, mean that only a pauper in receipt of parochial relief 
 is entitled to sue in forma pauperis. It only means that the 
 inspector of poor has been selected, as the official to certify the 
 poverty of an intending litigant, because he is the person most
 
 CERTIFICATE OF POVERTY. 509 
 
 likely to know, or best able fco get reliable information about, 
 the poor person's circumstances. 
 
 Appendix Rule 162. Robertson v. Midlothian County 
 
 7 Ed. VII. c. 51. Sch. I., Rule Council, 1898, 25 R. 569. 
 
 152 Frazer v. Macintosh, 1901, 9 
 
 Hunter v. Clark, 1874, 1 R. S.L.T. 117. 
 
 1154. 
 
 1156. Under the former practice, the Sheriff had no power 
 to review the certificate of poverty, nor was it within tin- 
 province of the agents of the poor to review it, or to report 
 upon it. But, under the new regulations, the certificate is 
 only prima facie evidence of the applicant's qualification, for 
 the agents of the poor are now directed to inquire and report 
 whether the applicant is entitled to the benefit of the poor 
 roll, as well as whether he has an ex facie case; and the 
 Sheriff may, upon their report or at any subsequent time, and 
 despite the certificate of poverty, refuse to any litiganl the 
 benefit of the poor roll. It is in the discretion of the Sheriff 
 at any stage to refuse to a litigant the benefit of the poor roll, 
 for any reason which appears to the Sheriff sufficient, as regards 
 the circumstances of the litigant, or the nature of his case, 
 or his behaviour in the cause. If the Sheriff-Substitute 
 deprives a litigant of the benefit of the poor roll, there is no 
 appeal without leave. 
 
 Appendix, Rules 163-169. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 163, 164, 169. 
 
 1157. ]No general rule can be laid down as to what con- 
 stitutes a genuine claim to the benefit of the poor roll. The 
 circumstances of each case must be regarded, but the only 
 statutory qualification is that of ■poverty. That inconvenience 
 or personal trouble will be involved, or that there may be a 
 possible liability for expenses of the opposite party, will not 
 justify an intending litigant being granted the benefit of tin- 
 poor roll. But poverty is a relative term, and it doc- ao1 
 necessarily follow that, because a person has some source of 
 income, he is debarred from the privilege; nor that, because 
 he has no present income, he is entitled to it. Regard musl 
 be had to such elements as an applicant's age, sex, social 
 circumstances, and means of livelihood, and these must all be 
 considered in relation to the kind of litigation proposed to be 
 entered upon, and the probable costs attending it. In each
 
 510 THE POOR ROLL. 
 
 case, according to its special circumstances, the Sheriff must 
 be satisfied thai the applicant is, at the time he is called upon 
 to litigate, a person who is " unable from poverty to pursue or 
 •• defend an action." 
 
 Appendix, S. 51. Anderson v. Blackwood, 1885, 
 
 7 Ed. VII. r. 51, s. 51. 12 R, 1263. 
 
 Walker v. Brown, 1860, 22 I). Mackaskill v. M'Leod, 1897, 24 
 
 678. R. 999. 
 
 Robertson, 1880. 7 R. 1092. Brown v. Brown, 1906. 8 F. 687. 
 Whyte, 1884, 11 R, 1145. 
 
 •'!. Agents. 
 
 1158. The agents for the poor hold office for one year, but 
 are eligible for re-nomination. They are appointed by vote 
 of the agents enrolled in the Court books, or, where there are 
 districts with separate Courts, in each district Court. An 
 annual meeting of law agents for this pnrpose is convened by 
 the Sheriff, by notice posted upon the walls of each Court- 
 house, and in each Sheriff-clerk's office, within the sheriffdom. 
 
 The names of the agents selected are reported to the Sheriff, 
 who confirms their nomination ; but he may refuse to confirm 
 the nomination of any agent, and, in that event, he may either 
 himself nominate another agent, or appoint another agents' 
 meeting to be held. 
 
 Appendix. Rules 152, 158. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 152, 158. 
 
 1159. Under the older practice, only agents practising and 
 having a place of business within a sheriffdom were appointed 
 by the Sheriff as agents for the poor. But the Law Agents 
 Act of 1873 opened practice in any Sheriff Court in Scotland 
 to every qualified law agent, who had enrolled his name in the 
 books of that particular Court. Accordingly, in most Courts 
 many law agents are enrolled who have no place of business 
 within the sheriffdom, and who only occasionally practise in 
 its Courts. These, as well as the resident local agents, are 
 entitled to attend the meeting, and to vote upon the nomination 
 of agents for the poor. Each of them, also, is liable to be 
 nominated as one of the agents for the poor for that Court, 
 although he may not be present at the meeting, so that an 
 agent might find himself nominated to act in a dozen different 
 Courts, in different parts of the country, which he had npon
 
 AGENTS. 511 
 
 occasion visited, and in which be had enrolled himself. To 
 obviate possible inconvenience, the Sheriff-clerk is required, 
 six days before the list of agents is submitted to the Sheriff 
 for confirmation, to notify bis nomination to each agent 
 selected by the meeting, "and such agent may, before the 
 "nominations are confirmed, represent to the Sheriff any 
 "reason why his nomination should not be confirmed." The 
 decision of the Sheriff is final. In the matter of appointment 
 of the agents of the poor, " Sheriff" does not include Sheriff- 
 Substitute. 
 
 Appendix, Rules 152. 154. 161, 36 & 37 Viet. c. 63, s. 13. 
 
 169. 
 
 1160. Suing in forma pauperis is a privilege, which the 
 Courts will not permit to be abused. Even if be has a 
 probable cause, a litigant will not be permitted to put 
 his opponent to unnecessary expense, by selecting an expensive 
 tribunal, when his case can be quite as well disposed of in an 
 inexpensive tribunal. "Where an action is unsuitable for trial 
 in the Court of Session, the Court will, if pursuer insists on 
 proceeding there, require him to find caution. On the same 
 principle, where an action is obviously suited for the Small 
 Debt Court, it is thought that the Sheriff could require a 
 pursuer who insists on resorting to the Ordinary Court to find 
 caution for expenses. 
 
 Buchanan v. Ballantine (1910), 1911, S.C. 1368. 
 
 1161. Each agent for the poor is bound, within six months 
 of the expiry of his year of office, to furnish the Sheriff-clerk 
 with a list of the cases in which he has acted, and the amounts 
 he has recovered, and, if he has recovered Court dues, he is 
 bound to account for them. 
 
 Act of Sederunt, 7th March, 1908, s. 5. 
 
 1162. When a party has been admitted to the benefit of the 
 poor roll, he is not at the moment held liable for dues of Court, 
 nor for the fees of the law agent appointed to conduct his case, 
 nor for fees of officers of Court. But such a party is liable for 
 outlays made by his agent or others on his behalf, lie is 
 also liable to pay the agent's fees, officers fees, and Court 
 dues if he recovers these from the opposite party. A party
 
 512 THE POOR ROLL. 
 
 citing witnesses is liable for their fees, notwithstanding that 
 he is suing in forma pauperis, but the agent is not (although he 
 is, in general, personally liable for the fees of witnesses whom 
 he cites), unless he personally recovers these from the opposite 
 party. 
 
 Appendix, Rules 166-168. Act of Sederunt, 7th March, 
 
 7 Ed. VII. c. 51, Sch. I., Rules 1908, s. 5. 
 
 166-168. 
 
 11G3. Agents for the poor, in their respective districts, are 
 bound to " assist each other, by taking precognitions or proofs 
 " on commission or otherwise, as may be requisite and reason- 
 " able." An agent to whom the conduct of a particular cause 
 has been allotted, and who has entered upon the duty, is bound 
 to finish the case, notwithstanding that during its course his 
 term of office as a poor's agent may have expired ; but the agent 
 has fulfilled his duty when he has concluded an action by 
 obtaining extract. He is not bound, gratuitously, to follow 
 up diligence. The agents appointed for the year usually 
 themselves arrange the allocation of the work. If not, the 
 Sheriff may direct it. 
 
 Appendix, Rules 159, 160. 7 Ed. VII. c. 51, Sch. I., Rules 
 
 159, 160. 
 
 1164. Upon the question whether a litigant has a probdbilis 
 causa litigandi, the agents of the poor are for the moment the 
 sole and final judges. But they must hear both sides, and they 
 must permit a party opposing the application, or his agent, to 
 see the information furnished by the applicant. If they report 
 that there is a probabilis causa, the Sheriff does not appear to 
 have discretion to interfere, but when an action is tabled, and 
 he can deal with it, he can deprive the pursuer of the benefit 
 of the poor's roll. The agents may require evidence to be 
 adduced before them. It is never necessary to lead complete 
 proof, but merely sufficient to show an ex facie case. But in 
 general the probability of the case is judged of by the state- 
 ments of the parties themselves, and extraneous evidence is not 
 at that stage called for. If the report of the agents for the 
 poor is unfavourable to an applicant, the Sheriff is entitled to 
 hear him, and, if further inquiry is desirable, the Sheriff may 
 remit the matter back to the agents. In the event of difference 
 of opinion amongst the agents, the opinion of the majority will
 
 AGENTS. 513 
 
 rule. It opinion be equally divided, the Sheriff will decide, 
 and, if he think if accessary , he may hear both sets of agents. 
 An agent for the poor, who is also acting for a litigant, cannot, 
 as re<^ml> that case, sit as a member of the probabUis causa 
 Court. 
 
 Appendix, Rules 163, 164. Cant v. Pirnie's Trustees, 1906, 
 
 7 Ed. VII. c. 51, Sch. I., Rules 8 F. 1120. 
 
 163, 164. Harbison v. M'Kean, 1913, 50 
 
 S.L.R. 350. 
 
 33
 
 CHAPTER XXV. 
 PROCEDURE RULES OF COURT. 
 
 11G5. It has long been the practice in Scotland that pro- 
 cedure in the Courts is regulated by Acts of Sederunt, enacted 
 by the Court of Session. The older Acts of Sederunt concerned 
 the in selves with very minute details, such as the shape and 
 position of the judge's table, and the colour of its covering, 
 and an ancient and now long-forgotten direction of a Court 
 of Session Act of Sederunt is that the judges are to keep silent, 
 unless asked by the Lord President to express an opinion. The 
 modern Act of Sederunt, as a rule, concerns itself only with 
 general principles of procedure. The Interpretation Act of 
 1889 defines "rules of Court" as in Scotland, including Acts 
 of Adjournal, Acts of Sederunt, and, generally, rules enacted 
 by any statutory body having power to enact rules. A power 
 to enact rules infers also power to alter or rescind them. 
 
 Act of Sederunt, 1532, 1553. 52 & 53 Vict. c. 63, s. 14, 32. 
 
 1166. The Sheriff Court has, from the earliest times, been 
 a Court of record. Originally each Sheriff, in his own jurisdic- 
 tion, had the sole authority to promulgate rules for the conduct 
 of proceedings in his Court. But, after the Sheriff Court had 
 been re-constituted by the Jurisdiction Act of 1748, the practice 
 became recognised amongst the Sheriffs of endeavouring, in 
 framing regulations for their Courts, to express them in similar 
 terms, with the view of promoting uniformity of procedure. 
 But the regulations were nevertheless not always uniform, 
 and in the Judicature Act of 1825 the present practice was 
 introduced of rules of procedure to be observed in inferior 
 Courts being promulgated by the Court of Session, and being 
 of general application. 
 
 20 Geo. II. c. 43. 6 Geo. IV. c. 120. 
 
 1167. The Sheriff, however, still retains his authority to 
 regulate, each in his own Court, procedure in regard to all
 
 PROCEDURE RULES OF COURT. 515 
 
 matters not specially dealt with by a statute, or by an Act of 
 Sederunt of general application. An Act of Court made by 
 the Sheriff, and recorded in the books of the Court, is final, and 
 is binding upon litigants and their agents, upon officers and 
 officials of the Court, upon witnesses, and generally upon all 
 members of the public who make use of the Court. The Sheri ffs 
 also are entitled to suggest, for the consideration of the Court 
 of Session, regulations which they recommend should be 
 embodied in Acts of Sederunt, but a printed draft of such 
 suggestions must be exhibited in each Sheriff Court for fourteen 
 days before it is submitted to the Court of Session. 
 
 Appendix, s. 41. 7 Ed. VII. c. 51, s. 41. 
 
 1168. The most important of the Acts of Sederunt 
 regulating Sheriff Court practice — that of 10th July, 1839 — 
 has been superseded by the procedure rules of the Sheriff 
 Courts Acts, 1907-1913. Express power is by the statutes 
 conferred upon the Court of Session to alter, amend, or 
 add to these procedure rules, and the general authority of 
 the Court of Session has also been recognised to make rules 
 for regulating the practice of the Sheriff Court, and for 
 regulating the fees of agents, officers, shorthand writers, and 
 others, and the dues of Court. 
 
 Appendix, s. 40. Inglis' Trustees v. Macpherson 
 
 7 Ed. VII. c. 51, s. 40. (1909), 1910, S.C. 46. 
 
 Act of Sederunt, 10th July, 
 1839. 
 
 1169. Such rules, however, are promulgated subject to the 
 provisions of existing Acts of Parliament. When a special 
 Act of Parliament provides full directions as to the procedure 
 under it, these statutory directions, if not specifically repealed, 
 are not abrogated, or affected, by the Sheriff Courts Acts, or by 
 any general Act of Sederunt. Many private Acts, as well as 
 some public statutes, so direct procedure. 
 
 Appendix, s. 39. 7 Ed. VII. e. 51, s. 39. 
 
 1170. An Act of Sederunt comes into force at the date 
 specified in it, or, if no date is specified, immediately upon 
 its being signed, but it is subject to veto by Parliament in 
 whole or in part. Within a week of its being signed, the Act 
 of Sederunt is transmitted by the Lord President to the
 
 516 PROCEDURE RULES OF COURT. 
 
 Secretary for Scotland, to be laid before Parliament, and if, 
 within thirty-six days after it lias been tabled, Parliament 
 resolve that the Act, or any part of it, oug'lit not to continue 
 in force, the same shall cease to be binding. 
 
 Appendix, s. 40. 7 Ed. VII. c. 51, s. 40. 
 
 1171. In addition to the right of Parliament to veto an 
 
 Act of Sederunt, which right existed under the former Acts, 
 
 but was seldom or never exercised, the Sheriff Courts Act, 1907, 
 
 provided a new and much more effective check upon hasty 
 
 or ill-considered enactment of procedure rules, by requiring 
 
 notification in the press. But this provision was repealed by 
 
 the Act of 1913. 
 
 Appendix, s. 40. 2 & 3 Geo. V. c. 28, Sch. I. 
 
 7 Ed. VII. c. 51, s. 40, Proviso 
 1. 
 
 1172. Process directions, contained in an Act of Sederunt 
 passed in compliance with a statute, have the same force 
 and effect as statutory enactments. Accordingly, failure to 
 observe the regulations of an Act of Sederunt may invalidate 
 the whole proceedings, and care should be observed, not only to 
 comply with direct statutory conditions, but also to follow the 
 directions of relative Acts of Sederunt. 
 
 Appendix, s. 40.
 
 CHAPTER XXVI. 
 SPECIAL ACTIONS. 
 
 1173. The great majority of actions brought in the Sheriff 
 Court belong to the petitory class. Since the Sheriff Courts 
 Act, 1907, made competent in the Sheriff Court actions of 
 declarator, this most convenient and adaptable form of action 
 has been largely used in the Sheriff Court. The ait ion ad 
 factum prcestandum has always been competent in the Sheriff 
 Court. The leading- characteristics of most Sheriff Court 
 actions are similar, but some actions follow peculiar procedure 
 All actions alike commence by initial writ, but the subsequent 
 procedure is not always exactly the same. 
 
 Appendix, Rule 1. 
 
 1. Ad Factum Pilestandum. 
 
 1174. An action ad factum prcestandum is competent only 
 to compel a defender to do something' which. a1 common law \ 
 or under contract, he is bound to do, and which, in existing 
 circumstances, it is possible for him to do. If performance has 
 become impossible, the Court will not grant decree ad factum 
 prcestandum, for no Court will grant a decree Avhich cannot 
 be made operative. The remedy for non-implement of an 
 obligation is an action of damages, and a conclusion for 
 damages is an alternative crave in the great majority of actions 
 ad facta prcestanda. But if implement is not impossible, the 
 pursuer is not bound to restrict his claim to one of damages. 
 
 Purves i7. Brock, 1867, 5 M. Cocker v. Crombie, 1893, 20 R. 
 
 1003. 954. 
 
 Henry v. Morrison, 1881, 8 R. Gall v. Loyal Glenbogie Lodge, 
 
 692. 1900, 2 F. 1187. 
 
 1175. Decree in this class of action warrants execution by 
 imprisonment, but decree will be granted only when perform- 
 ance is possible, and in exceptional cases the Court has a 
 discretion to refuse decree ad factum prcestandum, even where
 
 518 SPECIAL ACTIONS. 
 
 implement is possible. Where no alternative crave for 
 damages has been made, but it has appeared in the course of 
 the process that specific implement of the crave is impossible, 
 the Court does not necessarily refuse decree ad factum 
 prcestandinn, but may allow the pursuer to amend his initial 
 writ by inserting- a crave for damages. 
 
 Moore v. Paterson, 1881, 9 R. Winans r. Mackenzie, 1883. 10 
 
 337. R. 941. 
 
 Grahame v. Kirkcaldy Magis- 
 trates, 1882, 9 R. (H.L.) 91. 
 
 1170. When decree ad factum prcestandum has been 
 granted, imprisonment is not competent directly upon the 
 extract decree. The defender must first be charged to imple- 
 ment within a specified time the order expressed in the decree. 
 Within a year and day of the expiry of the charge, the execu- 
 tion of charge may be registered in the Court books. The 
 pursuer or his agent then endorses on the extract a minute 
 craving warrant to apprehend and imprison, upon which the 
 Sheriff-clerk grants a fiat, which is a warrant to apprehend 
 the defender and carry him to prison, and a warrant to the 
 keeper of the prison to receive and detain him. 
 
 1 & 2 Vict. c. 114, s. 10-15, Forgie v. Stewart & Macdonald, 
 Sch. II.-X. 1876, 3 R. 1149. 
 
 Hay v. Buchanan, 1823, 2 S. Mackenzie r. Balerno Paper 
 412. Company, 1883, 10 R. 1147. 
 
 Morrison v. Cuthbert, 1835, 13 Macdonald v. Mackessack, 
 S. 772. 16 R. 168. 
 
 1177. The remedy of a defender imprisoned under a decree 
 ad factum prastandum is to apply in the Court of Session for 
 suspension and liberation. Meanwhile the incarcerating pur- 
 suer must provide for his aliment, unless the prisoner is able 
 to aliment himself, or the defender is in prison because he will 
 not do what it is within his power to do. If the prisoner cannot 
 aliment himself, and the incarcerating creditor refuses to do 
 so, the prisoner may apply to the Sheriff, who may award him 
 aliment, and upon this question the Sheriffs decision is final. 
 
 1692 c 32 Act of Sederunt, 12th Nov., 
 
 6 Geo. IV. c. 62. 1825, II. (4). 
 
 7 & 8 Vict. c. 34, s. 13. Anderson v. Dingwall Magis- 
 23 & 24 Vict, c. 105. s. 76. trates, 1823, 2 S. 116. 
 
 40 & 41 Vict. c. 53, s. 70, 71. Mackenzie r. M'Lean, 1830, 8 
 
 45 & 46 Vict. c. 42, s. 8. S. 306.
 
 AD FACTUM PR2ESTANDUM. 519 
 
 2. Accounting. 
 
 1178. An action of accounting is in its nature an action ad 
 factum prcestandum, in respect that it asks the defender to 
 produce an account, and the money craving in an action of 
 count, reckoning, and payment is not alternative to, but m 
 supplement of, the crave for an accounting. It is, however, 
 in practice regarded as a money claim, and arrestment on the 
 dependence is competent upon the initial writ. But the money 
 crave does not necessarily fix, or even limit, the amount to 
 which the pursuer may be entitled, if an accounting is gone 
 into, lie is entitled to decree for whatever sum, less or more 
 than the nominal crave, the accounting discloses to be due. If 
 the liability to account is not admitted, a record may be made 
 up and a proof taken, and a judgment first pronounced dis- 
 posing of this question. When liability to account is admitted, 
 or has been established, the defender is ordered to produce an 
 account; the defender is allowed to lodge objections. A record 
 may be made up, and a proof allowed if necessary, but, where 
 investigation of books is necessary, the common and most 
 convenient practice is to remit to a man of skill to make a report. 
 
 Spottiswoode v. Hopkirk, 1853. 16 D. 59. 
 
 1179. If accounting is craved for in general terms, that 
 means that the period at which the account is to close is the date 
 of citation. If a continuing account is wanted, the crave should 
 ask that the defender be ordained to state an account down to 
 the date of the decree to be pronounced in the action. 
 
 Wauchope v. North British Railway Company, 1860, 23 D. 191. 
 
 1180. If the Court is satisfied that the defender is liable to 
 account, and that upon an accounting a sum will be due, 
 although the exact amount of it has not yet been ascertained, 
 the Court may order the defender to consign a certain named 
 sum. Such an order is a decree ad factum 'prcestandum, which 
 may be separately enforced, although the process still goe- on. 
 If no time for making consignation is expressed in the 
 interlocutor, the extract warrants a charge upon seven days' 
 inducias. 
 
 55 & 56 Vict. c. 17, s. 4, 7 (2), M'Lintock r. Prinzen & Van 
 
 Sch. 12. Glabeek, 1902. 4 F. 948. 
 
 Mackenzie r. Balerno Paper Mill 
 Company, 1883, 10 R. 1147.
 
 520 SPECIAL ACTIONS. 
 
 3. Alimentary. 
 
 1181 Some alimentary claims have always been enforceable 
 in the Sheriff Court, but the scope of the Sheriff Court juris- 
 diction was formerly more limited than it now is. Where no 
 question of st«/i/.< was involved, as in a claim for aliment for an 
 illegitimate child, or claims at the instance of parents against 
 children, or vice versa, no difficulty arose. But as betweeii 
 husband and wife the Sheriff could entertain a claim only upon 
 emergency grounds, and could award only interim aliment, 
 pending the aggrieved spouse taking proceedings in the Court 
 of Session to obtain permanent redress. The Sheriff Courts 
 Acts, 1907-1913, have materially altered the law by making 
 actions of separation and aliment, or adherence or aliment, or 
 interim aliment, or for regulating the custody of children, com- 
 petent in the ordinary Sheriff Court. 
 
 Appendix, s. 5 (2). M'Donald v. M'Donald, 1875, 
 
 7 Ed. VII. c. 51, s. 5 (2). 2 R. 705. 
 
 2 & 3 Geo. V. c. 28, Sch. I. 
 
 1182. This does not preclude an action for interim aliment 
 being entertained in the Small Debt Court. It is still com- 
 petent for a wife to sue a husband who will not adhere for 
 aliment, for that is not an action to declare status, but only an 
 action to recover a debt, a husband being his wife's creditor 
 for the amount which is necessary to aliment her according to 
 station in life. In such an action, however, the decree is only 
 for interim aliment, pending a formal process of adherence 
 or separation and aliment being brought. 
 
 Macdonald v. Macdonald, 1908, Scott r. Scott, 1911, 27 S.C.R. 
 
 24 S.C.R. 271. 5. 
 
 Samuel v. Samuel, 1909, 25 
 
 S.C.R. 99. 
 
 1183. Aliment of a destitute parent is also a debt, and a 
 parent may sue any members of the family for it, this being a 
 joint and several liability, which the parent is entitled to 
 enforce against any one or more of the obligants. The most 
 convenient way to ascertain the facts, both as regards the 
 necessity for aliment, and the ability of the family to pay, 
 is to convene all the parties who are liable to pay, and are not 
 paying. 
 
 Manderstone v. Manderstone, 1 Guth. Sel. Ca. 34.
 
 ALIMKXTARV. 521 
 
 1184. Formerly an alimentary decree warranted direct 
 imprisonment, bui now such a decree i- enforced in all respects 
 
 in the same manner as any other money decree, by poinding 
 and sale, and by arrestment. In addition to these remedies, 
 the holder of the decree has a remedy under the Civil 
 Imprisonment Act of 1882, if the debtor "wilfully fails 
 "to pay within the days of charge any sum or sums 
 "of aliment, together with expenses of process for which 
 "decree has been pronounced againsi him by any competent 
 "Court." The procedure is by separate initial writ, or by 
 minute endorsed upon the extract decree, setting forth the 
 debt due and the failure to pay. Intimation is made to the 
 debtor and a diet fixed, at which he may show that bis failure 
 to pay has not been wilful. If he do not appear, or it he do 
 not establish reasonable excuse for non-payment, a warrant 
 of imprisonment may be granted till the debt is paid, but not 
 for a longer period than six weeks. The procedure is sum- 
 mary, without appeal. The debtor's remedy is by way of 
 suspension. 
 
 45 & 46 Vict. c. 42. Christie v. Lowden, 1890, 6 
 
 Strain v. Strain, 1886, 13 R. S.C.R. 140. 
 
 1029. Whiteford v. Gibson. 1899. 7 
 
 Cook v. Wallace & Wilson, 1889, S.L.T. 233. 
 
 16 R, 565. Glenday v. Johnston. 1905. 8 F. 
 
 24. 
 
 1185. The wilful failure must be to pay the aliment 
 decerned for, and, when the decree is for continuing aliment, 
 each termly payment is a separate debt, upon non-payment of 
 which imprisonment may follow. A warrant for imprisonment 
 under the Civil Imprisonment Act may be repeated at intervals 
 of not less than six months. But the application is competent 
 only to the creditor in the alimentary decree. A third party, 
 as, for instance, a parochial board, who has advanced aliment to 
 the creditor, has not a title to apply for a warrant of imprison- 
 ment. The statute covers expenses decerned for. as well as 
 aliment, but only if the decerniture has been in favour of the 
 creditor. Thus the privilege of applying for a warrant under 
 the Civil Imprisonment Act is not competent to a law agenl 
 who has taken decree for expenses in his own name as agent 
 disburser. Imprisonment under the Civil Imprisonmenl Am 
 differs from the same diligence under a decree ad factum 
 prcestandum, in this respect that the creditor who obtains a 
 warrant under the Civil Imprisonment Act does not require
 
 SPECIAL ACTIONS. 
 
 to aliment the debtor in prison, as does the holder of a decree 
 
 ad factum pnrstandum. 
 
 45 & 46 Vict. c. 42, s. 4 (6). Bulloch v. Pollock, 1887, 3 
 
 Walker v. Bryco, 1881, 9 R. 249. S.C.R. 249. 
 
 Tevendale v. Duncan, 1883, 10 Mackay v. Rosolis Par. Conn il. 
 
 R. 852. 1899, 1 F. 521. 
 
 1186. A decree for aliment is not a final determination 
 that the aliment decerned for is to be permanent. That 
 depends upon the circumstances, as well as the relationship, 
 of the parties; and the circumstances may change. The 
 decree, accordingly, is so expressed as to leave it open to either 
 party to ask that it be altered, or abrogated, at some future 
 time. The defender's course is to lodge and intimate a minute 
 setting 1 forth the change of circumstances, and move the Court 
 to alter the decree to suit the altered circumstances. 
 
 Thorn v. Mackenzie, 1864, 3 M. Hay v. Hay, 1882, 9 R. 667. 
 
 177. Stewart v. Stewart, 1887, 15 R. 
 
 Macdonald v. Macdonald, 1881, 113. 
 
 8 R. 985. 
 
 4. Division of Commoxty. 
 
 1187. Under an old statute of 1695, the Sheriff had 
 privative jurisdiction as regards division of run rig-lands; 
 but up till 1877 the Court of Session alone could entertain 
 an action of division of commonty. When this was, in 18. '7, 
 made competent in the Sheriff Court, the Act of 1695 was 
 directed to be read as if it conferred jurisdiction upon the 
 Sheriff Court, in the same manner as upon the Court of 
 Session. The Sheriff Courts Act, 1907, repeated this pro- 
 vision, so that the Sheriff Court has now jurisdiction in all 
 actions of division of commonty, but the procedure is still 
 that prescribed by the Act of 1695. 
 
 Appendix, s. 5 (3). 40 & 41 Vict. c. 50, s. 8 (3), 9, 
 
 1695 c. 38. 10. 
 
 7 Ed. VII. c. 51, s. 5 (3). 
 
 1188. Formerly this action was competent in the Sheriff 
 Court only if the value of the disputed subject did not exceed 
 £1000 or £50 by the year. Such an action may now be 
 competently raised in the Sheriff Court irrespective of value, 
 but if the value exceed that amount, cither party is entitled 
 to have the action removed to the Court of Session in terms of 
 the Sheriff Courts Act, 1907. The action, if raised in the
 
 DIVISION OF COM MONTY. 523 
 
 Sheriff Court, must be brought in the Court of the distrid 
 where the commonty is Bituated. Ji may be at the instance 
 of any one or more of the joint proprietors, and all the others 
 must be called as defenders. Any person having an interest, 
 although not a joint proprietor, as, for instance, the holder 
 of a servitude right, should be called for his interest, but it 
 is not necessary to call tenants. 
 
 Appendix, s. 5, Proviso 1. 
 
 1189. The initial writ should describe the lands and 
 set forth the pursuer's interest. The most convenient, 
 and the common form, is to produce and refer to a plan. 
 The crave is for declarator that the commonty should 
 be divided amongst the proprietors according to their 
 respective rights and interests, and that each pro- 
 prietor be allocated his portion, and that the divisions be 
 properly marked, and that the defenders be ordained to grant 
 or concur in granting the deeds necessary to complete a title 
 to each portion of the lands. 
 
 1190. If the necessity for division is disputed, or the 
 respective interests of the proprietors are not agreed upon, it 
 may be necessary to make up a record and take proof. When 
 the necessity of division is not disputed, or after it has been 
 established, the division is usually effected by a remit to a 
 land surveyor, or other man of skill, to prepare a scheme of 
 division, which, when approved by the Sheriff and decerned 
 for, has the effect of a conveyance to each proprietor, who 
 may complete his title of recording the extract decree in the 
 Register of Sasines. 
 
 Bruce r. Bruce, 1883, 11 R. 192. 
 
 5. Sale and Division. 
 
 1191. It is competent for any one of several joint pro- 
 prietors to apply in the Sheriff Court to have a joint heritable 
 property divided, or, if, as is frequently the case, n cannot 
 be divided conveniently, or if its division is likely to cause 
 loss to any interested party, to have it sold and the proceeds 
 divided. The crave of such an action may be for division 
 only, but, as it may appear during the proceedings that 
 division is impracticable, or inequitable, in modern practice,
 
 524 SPECIAL ACTIONS. 
 
 an alternative crave for sale and division is always inserted. 
 Tli is action also is aubjed to removal to the Court of Session 
 if the property exceed the value of £1000 or .£50 by the year, 
 and it also takes the Form of a declarator. The crave is 
 similar to that of an action of division of commonty, and it 
 embraces a crave that each joint proprietor be ordained to 
 grant, or concur in granting, deeds necessary for the com- 
 pletion of titles. The action proceeds in the same manner 
 as any other ordinary action. 
 Appendix, s. 5, Proviso 1. 
 
 1192. The pursuer in his initial writ usually proposes a 
 scheme of division if this is practicable. If not, or if the 
 scheme is not agreed upon, a remit may be made to a man 
 of skill. But, in the general case, when division is not agreed 
 upon amongst the parties, the Court orders the joint property 
 to be sold at the sight of the Clerk of Court, or of some other 
 suitable person, under articles of roup drawn by the reporter 
 and approved by the Court, and upon such public notice of 
 advertisement or otherwise as the Court may order. The 
 articles of roup should recognise the right of any of the 
 parties to bid. When realised, the price is consigned in 
 Court, and divided amongst the parties, according to their 
 respective rights and interests. 
 
 6. Exhibition. 
 
 1193. The object of this action is to obtain exhibition in 
 the hands of the Sheriff-clerk of writs in which the pursuer 
 has an interest. This process was always competent in the 
 Sheriff Court, even if the writs of which exhibition were 
 sought related to heritable right or title, provided the pleas 
 raised no question of heritable title. It is now competent, 
 even if such a question is raised. It is chiefly used 
 at the instance of an heir, who desires to inform himself of the 
 state of a title, before deciding to take up the succession to 
 heritage. It is an action ad factum prcestandum directed 
 against the holder of the writ, the crave of the initial writ 
 being for production in the hands of the Sheriff-clerk. If it 
 is desired to obtain copies, there is also a crave that copies be 
 made and certified by the Court, in which event the process 
 is sometimes known as an action of transumpt. Although in 
 former practice it has been applied mainly to writs concerning
 
 EXHIBITION. 525 
 
 heritage, it now appears to be a competenl process for any 
 description of writing, to see which a pursuer can allege an 
 interest, for to exhibit ;i writing is a competent demand to make 
 in the Sheriff Court, and ii would take the form of a crave for 
 declarator thai pursuer is interested, and a crave for exhibition 
 of the writ ing. 
 
 Fulton v. Earl of Eglinton, 1878. Clark v. Melville, 1880 8 R 81 
 
 5 R. 752. 
 
 7. Interdict. 
 
 1194. The jurisdiction of the Sheriff Court has always been 
 practically unfettered in an interdict process, the object of 
 which, being- to prevent the doing of some wrongful act, can 
 in the general case be most promptly secured by application 
 to the local Court, The pursuer must have a reasonable 
 interest to object to what is complained of, or threatened. 
 Such an application may be made in the Court of Session, 
 but when an action for interdict is a still pending process 
 in the Sheriff Court, although interim interdict has been 
 refused by the Sheriff, it is not competent to raise a fresh 
 process of interdict in the Court of Session. If it is desired 
 to make a fresh application, the first action must be abandoned 
 in the usual way, and upon the usual terms as to expenses. 
 
 Appendix, s. 6 (e). Hood v. Traill, 1884. 12 R. 362. 
 
 7 Ed. VII. c. 51, s. 6 (e). Winans r. Macrae, 1885, 12 R. 
 
 Kelso School Board v. Hunter, 1051. 
 1874, 2 R. 228. 
 
 1195. It is not competent in the Sheriff Court to bring an 
 action of interdict to stop the execution of a judicial order. 
 Thus it is not competent in the Sheriff Court to entertain an 
 action the purpose of which is to prevent an order of a police 
 magistrate being made operative. 
 
 Forbes v. Underwood, 1886, 13 R. 465 (per Lord Shand). 
 
 1196. An application for interdict is an ordinary action, 
 and it follows the usual course of an ordinary Court process. 
 The crave for interdict is very frequently combined with one 
 for declarator, or for damages. If interim interdict is sought, 
 it must be specially craved. If the statements in the initial 
 writ warrant it, interim interdict is sometimes granted de 
 l>lano along with the warrant for service, but in general a 
 diet is fixed, upon a short inducise, for hearing parties on the
 
 526 SPECIAL ACTIONS. 
 
 crave for interim interdict. If it is granted in the defender's 
 absence, lie is not interpelled till the interdict order Las been 
 intimated to him; hut it is sufficient that it lias been brought 
 to his notice informally. If interim interdict is refused, the 
 motion for interim interdict may be renewed at any stage. 
 If interim interdict is granted or refused by the Sheriff - 
 Substitute, the interlocutor granting or refusing it is appeal- 
 able to the Sheriff, although the case may not yet have been 
 tabled, and although defences have not yet been put in. An 
 interlocutor granting interim interdict is not appealable to 
 the Court of Session, but a defender may a1 any stage of the 
 cause by motion ask that an interim interdict be recalled. 
 A pursuer may be liable in damages if he unreasonably fake 
 interim interdict, which is granted periculo petenUs. 
 
 Appendix, s. 27 (a). Glasgow C. & D. Railway Com- 
 7 Ed. VII. c 51, s. 27 (a), pany v. Glasgow Coal Ex- 
 Clark v. Stirling, 1839, 1 D. change, 1885, 12 R. 1287. 
 
 970. Fife v. Orr, 1895, 23 R. 8. 
 Duke of Argyle v. Macarthur, 
 
 1861, 23 D. 1236. 
 
 1197. In an interdict process, it is competent for a third 
 party to intervene. It might happen that the defender called 
 had no material interest to oppose interdict being granted 
 against him, but that the interdict would be prejudicial to 
 some other party, who has not been called. In that event, 
 the Court might allow a party, who has an ex facie interest, 
 to appear and be heard. The course is for such party to 
 put in a minute craving to be sisted as a party in the process. 
 
 Gas Power, &c, Company, Limited v. Beardmore, Limited 
 (1910), 1911, S.C. 27. 
 
 1198. As a condition of obtaining interim interdict, the 
 pursuer may be required to find caution for the damage the 
 defender may sustain, if it ultimately appears that interim 
 interdict ought not to have been asked. The damage for which 
 t lie cautioner may be liable may include legal expenses, judicial 
 and extrajudicial, to which defender has been put, as well as 
 such elements, as, for instance, deterioration in the value of a 
 subject the sale of which had been interdicted, or loss of 
 market, or the like. 
 
 Johnston v. Dumfries Road Henderson v. A B, 1908, 24 
 
 Trustees, 1867, 5 M. 1127. S.C.R. 40. 
 
 Stewart v. Forbes, 1897, 24 R. 
 
 112.
 
 INTERDICT. 527 
 
 1199. An action of interdict, if raised in the Sheriff Court, 
 may be raised in the Court of the sheriffdom within which the 
 wrong which it is desired to prevent has been committed, or 
 is threatened to be committed. It thus forms an exception 
 to the general rule that a personal action is brought in the 
 Court which has jurisdiction over the defender. The defender 
 in an action of interdict may not reside within a sheriffdom, 
 or carry on business within it. lie is nevertheless liable to its 
 jurisdiction, if he is a wrongdoer, or threatens to become a 
 wrongdoer, within that sheriffdom. He may reside in another 
 sheriffdom, or he may be a foreigner. If the latter, he does 
 not require to be rendered subject to the jurisdiction of arrest- 
 ment ad fundandam jurisdictionem or any other process. His 
 wrongdoing, or threatened wrongdoing, is sufficient to 
 constitute jurisdiction against him. 
 
 Appendix, s. 6 (e). Toni Tyres, Limited v. Palmer 
 
 7 Ed. VII. c. 51, s. 6 (e). Tyres, Limited, 1905, 7 F. 
 
 Gill v. Cutler, 1895. 23 R. 371. 477. 
 
 1200. If interim interdict is granted before the defender has 
 appeared, and if neither he nor his agent is present when it is 
 granted, intimation should forthwith be made to the defender. 
 As serious consequences may follow upon breach of interdict, 
 it is important that the intimation reach the defender. The 
 expression "judicial intimation," in the Citation Amendment 
 Act of 1882, is probably enough to cover intimation of an inter- 
 locutor granting interim interdict, and intimation by post is 
 probably theoretically competent, but intimation by officer is 
 generally regarded as the safer method. A subsequent inter- 
 locutor, continuing an interdict which had been granted for a 
 limited time, must, if the defender is not present or represented, 
 be intimated in the same manner. An interim interdict remains 
 in force although the action fall asleep. 
 
 45 & 46 Vict. c. 77, s. 3. Henderson v. Maclellan, 1874, 1 
 
 Hamilton v. Allan, 1861, 23 D. R, 920. 
 
 589. 
 
 1201. If a caveat has been lodged against the granting of 
 interim interdict, it will not be granted till the defender 
 has been afforded an opportunity of being heard. But much 
 time will not be allowed him, and if he has a good objection 
 to the competency of the action, or challenges the necessity 
 for an order for interim interdict, or means to offer caution to
 
 528 SPECIAL ACTIONS. 
 
 avoid interim interdict being- granted, lie must be prepared 
 to substantiate his pleas at once. In sheriffdoms different 
 views prevail as to the length of time a caveat stands. It is 
 commonly regarded as standing for a month. 
 
 Act of Sederunt, 7th March, 1908. 
 
 1202. An interim interdict, although appealed against, is 
 
 binding till it is recalled, for an appeal to the Sheriff does not 
 prevent the interdict being- operative, pending that appeal 
 being disposed of. 
 
 Appendix, s. 29. 7 Ed. VII. c. 51, s. 29. 
 
 1203. An order for interdict is not an ad factum frastandum 
 decree. It is a negative, rather than a positive, order. Dis- 
 obedience to it therefore is not followed by imprisonment as 
 a diligence. The defender is liable to imprisonment, not by 
 way of diligence, but by way of prosecution for breach of 
 interdict. This is in form a civil action, commencing by initial 
 writ, and the crave is that the defender be ordained to appear 
 personally to answer to the complaint. Generally also a crave 
 is inserted for damages, and for caution not to repeat the 
 offence. 
 
 1204. As the crave concludes for fine or imprisonment, it is 
 a quasi-criminal process, and the concurrence of the procurator- 
 fiscal is required. The fiscal, however, is not the complainer. 
 He merely endorses his concurrence upon the initial writ. The 
 onus of proving the breach of interdict rests with pursuer, and 
 a record is made up and proof taken as in an ordinary civil 
 process, the defender being a competent witness. The penalty 
 for breach of interdict is in the Sheriff's discretion. It is 
 usually a fine with an alternative of imprisonment, but occa- 
 sionally imprisonment without the option of a fine may be 
 appropriate. 
 
 Duke of Northumberland r. Miller v. Bain, 1879, 6 R. 1215. 
 
 Harris, 1832, 10 S. 366. Boswell's Trustees v. Pearson, 
 
 Beattie r. Rodger, 1835, 14 S. 1885, 24 S.L.R. 32. 
 
 6. Mackenzie v. Coulthart, 1889, 16 
 
 Henderson v. Maclellan, 1874, R. 1127. 
 
 1 R. 920. 
 
 1205. If the respondent fails to appear to answer to the 
 complaint of breach of interdict, the proceedings in practice
 
 [NTERDICT. 529 
 
 go on in ln's absence, if be may merely be found Liable in 
 expenses or in a nominal penalty, bis absence being taken as 
 a confession of the breach; but, strictly speaking, the respon- 
 dent should always be present, for be is called upon to plead 
 guilty ni not guilty to the charge of breach of interdict, and 
 he may be examined. It il is a case in which the penalty may 
 be serious, the diet should be adjourned, and a warrani 
 granted to apprehend and bring the respondent to the adjourned 
 diet. 
 
 Anderson v. Conacher, 1850, 13 Miller v. Bain, 1879, 6 R. 1215. 
 
 D. 405. Welsbach Incandescent Company 
 
 Benderson v. M'Lellan, 1874, 1 v. M'Mann, 1901, 4 F. 395. 
 
 R. 920. 
 
 L206. An interlocutor in a breach of interdict process is 
 
 subject to review in the same manner as an interlocutor in any 
 
 other Ordinary Court process. 
 
 Stark's Trustees v. Duncan, Maclachlan v. Bruce, &c, 1912, 
 
 1906, 8 F. 429. S.C. 440. 
 
 8. Lawburrows. 
 
 1207. Wheu a person dreads bodily harm or molestation 
 by another person, of himself or his family, he may, in the 
 Sheriff Court, present an application for lawburrows. The 
 Civil Imprisonment Act of 1882 made it incompetent to issue 
 letters of lawburrows under the Signet in the Court of Session 
 or Court of Justiciary. This is a summary application, com- 
 menced by initial writ, setting forth the grounds of the 
 application, and craving that defender find caution that the 
 pursuer and his family and dependants be kept scaithless, 
 under a penalty to be fixed by the Sheriff, and craving also 
 warrant, failing caution being found, for the defender's arresl 
 and imprisonment till he find caution as ordered. Formerly 
 the amount of the penalty varied with the social status of the 
 defender, being for an earl two thousand pounds Scots; for a 
 baron a thousand pounds; for a freeholder five hundred merks; 
 for a gentleman two hundred merks; and for a yeoman or other 
 person of lower degree a hundred merks. But all these distinc- 
 tions have disappeared, and, be he noble or simple, the Sheriff 
 now fixes the penalty according to circumstances. The am 
 and somewhat cumbersome process was simplified by the Civil 
 Imprisonment Act, which directs the application to be disposed 
 of summarily, without written pleadings or record of evidence,
 
 530 SPECIAL ACTIONS. 
 
 and limits the period of possible imprisonment to six months. 
 Caution may be dispensed with, and the offender ordered 
 to grant his own bond for duly implementing the terms of the 
 Sheriff's order, under pain of imprisonment. Expenses may be 
 awarded on either side, but there is no power of imprisonment 
 for non-payment of expenses. There is no appeal, the remedy 
 of a person aggrieved being by way of suspension in the Court 
 of Session. 
 
 1593, c. 170. Gadois v. Baird, 1856, 28 Jur. 
 
 45 & 46 Vict. c. 42, s. 6. 682. 
 
 Smith v. Baird, 1799, Mor. 8043. Brock v. Rankine, 1874, 1 R. 
 
 991. 
 
 1208. If the defender, despite the Sheriff's order, molest the 
 pursuer or his family, he may be sued in an action of contra- 
 vention of lawburrows. The cautioner is also called, if there 
 is one. The concurrence of the procurator-fiscal is required, 
 but the action is in form a civil application, craving forfeiture 
 of the penalty. 
 
 9. March Fences. 
 
 1209. Notwithstanding the former limitation of Sheriff 
 Court jurisdiction, as regards questions relating to heritable 
 property, the local Sheriff Court had always power to regulate 
 questions relating to the erection or repair of march fences, and 
 where a boundary line was irregular to straighten the march, 
 by taking from the one property and adding to the other, as 
 nearly as possible in equal portions. Formerly, if there was 
 a dispute as to the situation of the existing line of division, 
 the process for regulating the march fences had to be sisted 
 till the question of boundary was settled by declarator. But 
 all actions relating to heritable right and title, and also all 
 actions of declarator, being now competent in the Sheriff 
 Court, the w r hole questions relating to the regulation of march 
 fences can now be settled in the Sheriff Court. In a process 
 for straightening marches, the Sheriff is still required to visit 
 the ground, and this duty he cannot delegate, although he 
 may take the assistance of skilled persons in performing it. An 
 application of this sort is an ordinary action; the process is 
 conducted in the usual manner, and the judgment is subject 
 to review in common form. But, as a rule, the Supreme Court
 
 MARCH FENCES. 531 
 
 will not interfere, unless there has been some grave error in 
 procedure. 
 
 1661, c. 41. I. ""I Advocate v. Sinclair, 1872, 
 
 1669, c. 19. 11 M. 137. 
 
 1685, c. 39. Kintore v. Kintore's Tt 
 
 1886, 13 R. 997. 
 
 10. Maills and Duties. 
 
 1210. Formerly every action for recovery of rent was called 
 an action of maills and duties, but in modern practice the 
 term is applied only to an action at the instance of a heritable 
 creditor of the landlord, for the purpose of securing the rents 
 of the property, to the exclusion of the Landlord's personal 
 creditors. The heritable creditor, in the initial writ, musl sei 
 forth his title. The defenders who may be called are the pro- 
 prietor of the property and the tenants in occupation of it, 
 or who within five years have removed owing' arrears of rent ; 
 but, if the creditor has already taken proceedings which give 
 him a right to the rents, the proprietor need not be called, but 
 only the tenants. Formerly when a question relating to herit- 
 able title arose, which was not competent to be tried in the 
 Sheriff Court, the process had to be sisted pending its disposal : 
 but as all such questions may now competently be settled in the 
 Sheriff Court, irrespective of the value of the property, no 
 interruption need occur in the course of this process. Decree 
 may be craved for payment to the heritable creditor, not only 
 for past due rents, but for rents to fall due, and when the 
 creditor has obtained decree he has the same remedies as the 
 proprietor for the recovery of rents, and may pursue an action 
 of sequestration for rent, not only against tenants called in the 
 maills and duties action, but also against tenants who have 
 subsequently entered. He may also, by poinding of the 
 ground, attach moveables on the ground belonging to the 
 proprietor, and also those belonging to the tenants, but only to 
 the extent of their respective rents. 
 
 Appendix s 5 (4). Campbell's Trustees v. Paul, 
 
 1669, c. 9. ' 1835, 13 S. 237. 
 
 7 Ed. VII. c. 51. s. 5 (4). Brown v. Scott. 1859, 22 D. 273. 
 
 Ersk IV , 1-49. Henderson t?. Wallace, 1875, 2 R. 
 
 Bruce v. Grant, 1824, 2 S. 552. 272. 
 
 Woodward v. Wilson, 1829, 7 Robertson's Trustees v. Gardner, 
 
 S. 566. 1889, 16 R. 705. 
 
 1211. In some circumstances, it may still be desirable to
 
 532 SPECIAL ACTIONS. 
 
 call the tenants, and, upon obtaining decree, to formally charge 
 the tenants to make payment to the heritable creditor, but the 
 Heritable Securing Act of 1S!)1 introduced an alternative and 
 briefer process, in which the proprietor only need be called, 
 the crave in the initial writ being for a general declarator 
 thai the creditor lias right to the rents. Notice of the raising 
 of the action is given by registered letter to the tenants, the 
 effect of which notice is to interpel the tenants from paying 
 to the proprietor, and to render them, if they do pay, liable 
 to pay again to the creditor if he obtains decree, but without 
 prejudice to the tenant's right upon any legal ground to 
 withhold payment of rent. Upon decree being obtained, notice 
 thereof is again given to the tenants by registered letter, the 
 effect of which is to make the tenants direct judgment-debtors 
 to the creditor, and to exoner the tenants upon making payment 
 to the creditor. 
 
 57 & 58 Vict. c. 44. s. 3, Sch. A. B, C. 
 
 11. Poinding of the Ground. 
 
 1212. The object of the process of poinding of the ground 
 is to enable a creditor, whose debt constitutes a real burden 
 on land, to secure moveable effects upon the lands, in satis- 
 faction of his debt, principal, and interest. It is a diligence 
 in the form of an ordinary action, and it may be pursued by 
 a creditor who has an ex facie title and who has not entered 
 upon possession of the lands. If he is in possession, he cannot 
 competently use this diligence. Thus, a creditor who holds an 
 absolute disposition qualified by a back letter cannot use this 
 process, because his ex facie title for the time being is that of 
 proprietor. It is competent to a bondholder, or to a superior 
 for feu duties or casualties, but it is not competent to an 
 assignee of a lon^ lease. The initial writ must set forth the 
 pursuer's title, and the defenders called are the proprietor 
 and the tenants. The crave is for warrant to search for, 
 poind, and appraise the moveable effects upon the ground, 
 in security and for payment of the heritable debt, and, mean- 
 time, for warrant to inventory and secure. Service of the 
 writ creates a nexus upon the inventoried effects, but only 
 goods which at the date of service of the action are actually 
 on the ground can be poinded. ISo personal decree is craved, 
 except for expenses, so that, when decree has been granted, a,
 
 POINDING OF THE GROUND. 533 
 
 charge is not necessary. The debt founded upon must be a 
 debituin fundi, and musl be duly constituted; bu\ a person 
 in righl of the debl may pursue the process, although his title 
 is not yet heritably completed, as, for instance, an assignee. 
 On decree being granted, the sale is carried out under section 
 26 of the Debtors (Scotland) Act, 1838. Tenants' goods can 
 be taken only to the extent of their unpaid rents; good- oJ 
 third pari ies not at all. 
 
 Anstruther, 1838, 16 S. 1132. Nelmea v. Gillies, 1883, 10 R. 
 
 Scot. Her. Sec. Co. r. Allan. 890. 
 
 1876, 3 R. 333. Qrquhart v. Anderson (M'Lei 
 
 Lyons v. Anderson. 1880, 8 R. Trustee), 1883, 10 R. 991. 
 
 "24. Luke v. Wallace, 1896. 23 R. 
 
 Thomson v. Scoular, 1882. 9 R. 634. 
 
 430. 
 
 1213. Formerly the Sheriff could not entertain a defence 
 founded upon questions of heritable right ond title (except since 
 1877, within the value limits of the Sheriff Court Act of that 
 year), and, if the pursuer's title were ex facie good, it could 
 not be challenged in this process. All questions concerning 
 heritable right or title being now competent in the Sheriff 
 Court, the pursuer's title may be challenged, irrespective of the 
 value of the lands, and all questions arising may be disposed 
 of by the Sheriff. 
 
 Appendix, s. 5 (4). Ailsa v. Jeffray. 1859. 21 D. 492. 
 
 7 Ed. VII. e. 51, s. 5 (4). 
 
 12. Proving the Texor. 
 
 1214. The object of an action of proving the tenor is to sei 
 up a document which, accidentally or fraudulently, has been 
 lost, destroyed, or defaced. In form it is an action of 
 declarator, and was formerly competent only in the Court of 
 Session; but the jurisdiction of the Sheriff Court now extends 
 to all actions of declarator, and so it appears to have become 
 competent to pursue this process before the Sheriff, subject, 
 of course, to the proviso of the Sheriff Courts Act, l!M)7. that, 
 if the lost documents relate to heritable right or title, or to 
 succession rights, and the value involved exceeds £1000, the 
 cause may be removed to the Court of Session. But in this case, 
 as in others falling within the extended jurisdiction, the special 
 procedure hitherto observed in the Court of Session must, so 
 far as appropriate, be adopted also in the Sheriff Court. The
 
 534 SPECIAL ACTIONS. 
 
 peculiarity of this process, as conducted in the Court of Session, 
 is that the Lord Ordinary before whom the case is called does 
 not proceed with il in the ordinary way. but makes avizandum 
 of it tit a Division, where it subsequently proceeds. But in 
 the Sheriff Court the process w r ill follow the ordinary procedure. 
 The initial writ should set forth the terms of the writ proposed 
 to be set up, and the circumstances explanatory of its not 
 beine; forthcoming. It should also make reference to the 
 existing adminicles of evidence, such as drafts or copies, and 
 these should be produced, along with the initial writ, at the 
 first calling. All parties having interest should be called as 
 defenders. Defences will be lodged in ordinary course, and, 
 if the adminicles are not self-explanatory, proof may be 
 necessary to explain them. Even if adminicles are produced 
 sufficient to establish the tenor of the lost writ, proof may be 
 requisite of the casus amissionis , and that even if the action is 
 undefended, because the Court must be satisfied, not only that 
 there once existed a writing in the terms libelled, but also 
 that it has been lost or destroyed, and that in such circum- 
 stances as did not infer extinction of the right or obligation 
 which the w r riting evidenced. Proof will also be required of 
 the efforts made to recover the missing document. The decree 
 must embody the terms of the missing deed, and the effect of 
 the decree is to set up the lost document, to the same effect in 
 law as if it had been found, the extract decree having the same 
 legal effect as the deed itself. 
 
 Appendix, s. 5 (4). Wallace v. Russell 1862, 24 D. 
 31 & 32 Vict. c. 100. 1141. 
 
 7 Ed. VII. c. 51, s. 5 (4). Winchester v. Smith, 1863, 1 M. 
 Act of Sederunt, 20th March, 685. 
 
 1907, s. 7. Rannie v. Ogg, 1891, 18 R. 903. 
 
 Ersk. IV., 1, 54-59. Skinners' Incorporation v. Bax- 
 Dick on Ev., 1328, 1360. ter's Repr., 1897, 24 R. 744. 
 
 13. Relief. 
 
 1215. An action of relief is the process by which a party, 
 who is ex facie liable in implement of an obligation, but who 
 is not the person truly liable, seeks to have the real obligaut 
 ordained to implement the obligation, and so to relieve the 
 pursuer of a possible action against him at the instance of the 
 creditor in the obligation. Thus, an ex facie joint obligant 
 upon a bill, who is being held liable by the holder, may sue 
 his joint obligant, who is the real obligant. If he has been
 
 RELIEF. 
 
 already forced to pay, the action, of course, will kaki 
 form of a claim for repayment of whal lie baa disbursed on 
 behalf of the real legal obligant; but an action of relief may 
 be brought although the party ostensibly liable has not yet 
 paid, in which case the crave is that defender be ordained 
 to free and relieve the pursuer by meeting his obligation 
 and producing a discharge in process. 
 
 14. Separation ami Aliment, &c. 
 
 1216. Certain consistorial actions have been made competent 
 in the Sheriff Court under the Sheriff Courts Acts, 1907-1!) 13, 
 which were formerly competent only in the Court of Session. 
 The peculiarities of procedure, which obtain in Court of Session 
 practice in such actions, apply also in the Slier ill' Court, bo 
 far as these are not inconsistent with the general rules of pro- 
 cedure in Sheriff Court actions. 
 
 Appendix, s. 5 (2). 2 & 3 Geo. V. c. 28, Sch. 1. 
 
 7 Ed. VII. c. 51, s. 5 (2). 
 
 1217. One of the peculiarities is that, although the action 
 may be undefended, a decree in absence is not granted without 
 inquiry. The pursuer must first substantiate the grounds 
 of action, that is to say, must submit to the Court facts and 
 circumstances warranting the crave. Having regard to this, 
 the grounds of action should be very clearly set forth in the 
 condescendence annexed to the initial writ. 
 
 11 Geo. III. and 1 Will. IV. c. Macfarlane v. Macfarlane. 1847, 
 
 69, s. 35-36. 9 D. 500. 
 
 Muirhead v. Muirhead, 1846, 8 Grant v. Grant, 1908, 24 S.C.R. 
 
 D. 786. 114. 
 
 1218. But, although thus preceded by inquiry, the decree, 
 when granted, is a decree in absence, because it is a decree 
 granted in an undefended cause, that is to say, a cause in 
 which the defender has not lodged a notice of appearance. It 
 is accordingly a decree against which the defender may be 
 reponed. 
 
 7 Ed. VII. c. 51, Rules 23, 27. 
 
 1219. The amendment made by Sheriff Courts Act, 1913, 
 upon Rule 23 of the 1907 Act appears at first Bight to have 
 removed such a decree from the categorv of decrees in absence:
 
 536 SPECIAL ACTIONS. 
 
 but it does not really do so, for the obvious meaning of the 
 rule as it now stands is merely that in this class of case, the 
 procedure for obtaining a decree in absence, is different. It 
 does not aiiect the character of the decree. 
 
 Appendix. Rule 23. 2 &3 <:<•<>. V. c. 2'd, Sen. 11. 
 
 7 Ed. VII. c. 51, Rule 23. 
 
 1220. There are only three kinds of decrees known in the 
 Sheriff Court— (a) a decree in absence; (b) a decree in foro; 
 and (c) a decree by default. This decree cannot be a decree in 
 foro, because, although evidence lias been led, there has been 
 no contestor, and there must be a contradictor in a cause 
 before a decree in foro can be pronounced. Nor is it a decree 
 by default, for before a defender can be in default, he must 
 be in the process; and there is no defender in this process, 
 because no notice of appearance has been lodged. The decree 
 accordingly is a decree in absence. It differs from any other 
 decree in absence only in the manner in which it is arrived 
 at. But the machinery being different does not affect the result. 
 The stage of granting decree is reached later than in the 
 normal case; but, when it is reached, the same thing is done, 
 that is, decree in absence is granted. Ueponing is accordingly 
 competent. 
 
 Appendix, Rules 23, 25, 27, 56. 
 
 1221. In this class of action there are possible peculiarities 
 of service. It is a class of action in which for obvious reasons, 
 if it is possible at all, the defender should be cited personally, 
 and, just as the requirement of the Court of Session Act of 
 1830, that a pursuer is to substantiate the grounds of action 
 before decree in absence is granted, is regarded as imported 
 into Sheriff Court practice by the extension of the Sheriff 
 Court jurisdiction to this class of action, so also the provisions 
 of the Conjugal Rights Act of 1861, and the Court of Session 
 Act of 1868, as to service, may be imported. Special provisions 
 include (a) that the defender is required to be cited personally, 
 even if resident furth of Scotland, if his address is known, to 
 which end the writ may be delivered to defender by any person, 
 not necessarily an officer, whose certificate of delivery is 
 evidence of citation, unless the Court requires further evidence ; 
 (b) that in this class of case a warrant to cite edictally is only 
 granted after the Court has been satisfied that defender cannot
 
 SKPAI! \TloN AND ALIMENT, &c. 537 
 
 be found ; (< I that, if the citation is edictal, children or next-of- 
 kin are to be called. Some of these provisions may not be 
 applicable in a Sheriff Court process; but, 30 Ear as they are 
 appropriate, it appears to be competent for the Sheriff to apply 
 these special rules, on the recognised principle thai importing 
 tins new jurisdiction into Sheriff Court practice, imports along 
 with it any special process enactments relative thereto, so Ear as 
 these are not inconsistent with the Sheriff Court procedure 
 rules, or with recognised Sheriff Court practice. 
 
 24 & 25 Vict. c. 86, s. 10. 31 & 32 Vict. c. 100, s. 100. 
 
 1222. The pursuer in an action of separation and aliment, 
 or adherence and aliment, is entitled to an interim award, 
 sufficient to maintain her whilst the litigation is pending. Tins 
 may be granted ai any time alter the case has been tabled, 
 but when the action is defended it may be undesirable to make 
 an award till the closing of the record. Both the making of 
 an interim award, and the amount of it, are matters within the 
 discretion of the Court, and until the pleadings have been 
 put in, and adjusted, the circumstances cannot be properly 
 considered. 
 
 1223. As a general rule, arrestment on the dependence is 
 not competent to secure a future or contingent debt, and an 
 award of aliment in an action of separation and aliment or 
 adherence and aliment is not in general retrospective. But it 
 is not incompetent in such an action to crave a warrant to 
 arrest on the dependence. Whether it will be granted is a 
 question of circumstances. The most common cases in which 
 such a warrant is sought is where it is averred that the defender 
 is vergens ad inopiam, or in meditatione fugas, or that he is 
 presently possessed of specified available funds, as, for instance, 
 money in a named bank, which funds are in danger of dis- 
 appearing. Another case is where the defender has been living 
 apart by arrangement, and is in arrear with the stipulated 
 alimentary allowance. But each case must be judged of in the 
 light of its own circumstances, and, if a warrant to arrest is 
 craved, the grounds Eor craving it should be distinctly set forth 
 in the condescendence of the initial writ. 
 
 Symington v. Symington, 1874, James v. James, 1886, 13 R. 
 
 1 R. 1006. 1153. 
 
 Burns v. Burns, 1879, 7 R, 355. Johnston r. Johnston, 1910, 26 
 
 S.C.R. 134.
 
 538 SPECIAL ACTIONS. 
 
 L224. An action of separation and aliment or of adherence 
 and aliment differs from actions in general as regards expenses. 
 I f i he husband is pursuer, 1 he wile is usually awarded expenses, 
 even if her defence fails, unless she is possessed of separate 
 estate. When the wife is pursuer, and succeeds, she gets 
 expenses as between agent and client. The principle is thai a 
 husband is liable for debts contracted by his wife for neces- 
 saries, and the cost of pursuing- a necessary action at law is 
 regarded as such a debt. Accordingly, the husband would at 
 common law be liable for an account incurred by his wife to 
 her law agent in necessarily defending her honour, or securing 
 her personal safety. " For the purpose of avoiding circuity," 
 the practice of the Courts is to decern in such cases for expenses 
 as between agent and client. 
 
 A B v. C B, 1906, 8 F. 973. Wright v. Wright, 1910, 26 
 
 S.C.R. 111. 
 
 1225. This principle, however, does not apply in other 
 than consistorial causes proper, so it does not apply in actions 
 relating to the custody of children, for these are not properly 
 speaking consistorial actions. Where a conclusion for custody 
 of childi en is combined with a crave for separation and 
 aliment, as it frequently is, the Auditor, under a general 
 finding for expenses, will have regard to what expense has 
 been incurred by the wife in the separation crave, which is 
 a " necessary " expense for which the husband is liable ; and 
 expense incurred in connection with other craves, which may 
 not fall within necessaries. 
 
 M'Alister v. M'Alister, 1762, ABuCB, 1906, 8 F. 973. 
 
 Mor. 4036. Thomson v. Thomson, 1908, S.C. 
 
 King v. Patrick, 1845. 7 D. 536. 179. 
 Milne v. Milne, 1885, 13 R. 304. 
 
 15. Sett and Sale. 
 
 122G. This is not now a very common form of action, for 
 ships are not now extensively held on the sixty-fourth prin- 
 ciple. The owner of one or more sixty-fourths, who desires 
 to free himself from the joint ownership, but cannot arrange 
 that with his co-owners, may offer to sell his interest to his 
 co-owners, or to buy theirs at a named price. If his offer 
 is not accepted, he is then entitled to bring an action of sett 
 and sale in the Sheriff Court, calling the other co-owners as
 
 SETT AND SALE. 539 
 
 defenders. If each of the other co-owners is subjecl to the 
 jurisdiction of a Sheriff Court, the action may be brought in 
 the Sheriff Court within whose jurisdiction any one of the 
 defenders resides; bul it is very Likely thai all the co-owners 
 do not reside in Scotland. In thai event it would seem to 
 be competenl to bring the action in the Court within whose 
 jurisdiction the managing owners have their office, Eor there 
 all the co-owners (wherever resident), through their managing 
 owners, carry on the joint adventure business of owning and 
 employing the ship. It may possibly also be competent to 
 bring the action in the district of the ship's port of registry, 
 if that port is in Scotland. 
 Appendix, s. 4, 6 (a), (b). 
 
 L227. This is in form an ordinary action, and it follows 
 the ordinary course of procedure, including- appeal. The 
 initial writ should narrate the offer made, and the refusal 
 of the co-owners either to buy or to sell. The crave is that 
 the defenders be ordained to pay to pursuer his fixed price, 
 in exchange for a bill of sale for his shares ; or otherwise to 
 grant bills of sale to pursuer in exchange for the like price; 
 and failing- the defenders doing either, to appoint the ship to 
 be sold under direction of the Court, and the free proceeds 
 apportioned amongst the co-owners. 
 Appendix, s. 4, 6 (a), (b).
 
 (II AFTER XXVII. 
 STATUTORY POWERS AND DUTIES. 
 
 1228. It has long been the practice that legislation affect- 
 ing Scotland should be made operative in the local Sheriff 
 Courts. As a Court of summary jurisdiction, the Sheriff Court 
 in Scotland is the convenient executive for enforcing statutory 
 law, and a great many statutes, dealing with very varied 
 interests, impose duties upon the Sheriff. Reference to such 
 of these statutes as involve civil proceedings may be of interest, 
 as illustrating the extent and the variety of this statutory 
 jurisdiction of the Sheriff Court, which fresh legislation is 
 constantly adding to. 
 
 1. Agricultural Holdings. 
 
 (1) Crofters, $c. 
 
 L229. Under such statutes as the Crofters Holdings Acts, 
 1886-1891, which applied to certain parishes in Scotland, and 
 the Agricultural Holdings Acts, 1883-1906, which applied to 
 certain classes of holdings all over Scotland, the Sheriff Courts 
 were invested with some very important powers. But these 
 statutes have practically been superseded by the Agricultural 
 Holdings Act of 1908, and by the Small Landholders Act of 
 1911, and the duties formerly discharged in the Sheriff Court 
 under the Crofters Acts have been mainly transferred to the 
 new Land Court, created in 1911. "Small landholder" now 
 includes a crofter, and the Crofters Commission, created by 
 the Act of 1886, having been merged in the Land Court 
 created by the Land Act of 1911, the only important matter 
 under the crofting statutes which remains with the Sheriff is 
 the hearing of complaints for contravention of the regulations 
 for common grazings. 
 
 49 & 50 Vict. c. 29. 8 Ed. VII. c. 64. 
 
 54 & 55 Vict. c. 41. 1 & 2 Geo. V. c. 49, s. 20-24, 
 
 8 Ed. VII. c. 50, s. 2. 28.
 
 AGRICULTURAL I l< )l.l >I \< :s. 541 
 
 (2) Arbitration. 
 
 L230. Questions arising under the Agricultural Eoldii 
 Act, 1908, arc directed to be determined by the arbitration of 
 a single arbiter; and, under the scheduled Arbitration Rules, 
 
 the Sheriff's duties are — (a) To remove an arbiter who has 
 misconducted himself; (b) to direcl the arbiter upon questions 
 of law arising in the arbitration; (c) to se1 aside the arbiter's 
 award if it has been improperly procured; (d) to hear and 
 decide objections to the report of the auditor of the Sheriff 
 Court upon any account of expenses awarded by the arbiter. 
 8 Ed. VII. c. 64, s. 11, Sch. II. 
 
 1231. This arbitration schedule is imported into the 
 Landholders Act of 1011 as regards claims arising out of the 
 creation of new holdings, under section 7 (11) of the 1911 Act ; 
 but if the claim does not exceed £300, the claim is determined 
 by the Land Court: and if it exceeds £300, and the landlord 
 or the tenant requires it to be settled by arbitration, the 
 arbitration rules are to be read substituting the Lord Ordinary 
 for the Sheriff, so that the Sheriff has no arbitration duties 
 at all arising under the Landholders Act of 1911, and no 
 duties at all, except the general duty of interponing the 
 authority of the Court to the orders of the Land Court. The 
 1911 Act provides that " an order of the Land Court may be 
 " presented to the Sheriff, and the Sheriff, if satisfied that 
 "the order has been duly recorded, shall pronounce decree in 
 " conformity with such order, on which execution and diligence 
 " shall proceed." The Sheriff has no responsibility for the 
 terms of any order upon which he thus grants decree. His 
 only duty is to see that it has been "duly recorded," and if 
 so, to grant the appropriate decree to make the order effective. 
 1 & 2 Geo. V. c. 49, s. 7 (11), 25 (6). 
 
 1232. If the claimant is a small landholder, a claim for 
 compensation for damage by game, which was formerly deter- 
 mined by arbitration under the Agricultural Holdings Act, 
 under the supervision of the Sheriff, is now determined by 
 the Land Court. 
 
 8 Ed. VII. c. 64, s. 9. 1 & 2 Geo. V. e. 49, s. 10 (3). 
 
 1233. The claims which may arise for determination by
 
 542 STATUTORY POWERS AND DUTIES. 
 
 arbitration under the supervision of the Sheriff, under the 
 Agricultural Holdings Act, accordingly now are tenants' 
 claims dor (a) improvements; (b) unreasonable disturbance; 
 (c) fixtures and building's; (d) game damages, if the tenant 
 is not a small landholder, and landlords' claims for deteriora- 
 tion of the holding- by miscropping. 
 8 Ed. VII. c. 64, s. 1, 10, 20. 23. 
 
 1234. The Arbitration Act of 1894 does not apply to an 
 arbitration under the Agricultural Holdings Act. The Sheriff 
 does not nominate the arbiter; he only directs him upon ques- 
 tions of law. The arbiter, failing agreement of parties, is 
 nominated by the Board of Agriculture. But, curiously 
 enough, the Board do not remove an arbiter. The bald 
 direction of the schedule is — " Where an arbiter has miscon- 
 '* ducted himself, the Sheriff may remove him." There is no 
 process direction whatever, and no definition of " misconduct." 
 Presumably either personal or official misconduct is a ground 
 of removal. Some interested party must, of course, state the 
 complaint against the arbiter; and the only interested parties 
 are the landlord and tenant, and probably the Board of 
 Agriculture, if the arbiter is their nominee. An application 
 to the Sheriff to remove an arbiter will take the form of a 
 summary application at the instance of the landlord, or the 
 tenant, or both. The condescendence should narrate, not 
 general, but specific, misconduct; and if the Board of Agricul- 
 ture had nominated the arbiter, probably the Court would order 
 intimation to the Lord Advocate. 
 
 8 Ed. VII. c 64, ?. 4 (1) (11) (4), Sch. II. 
 
 1235. The statute does not, in regard to this matter of the 
 arbiter, declare that the Sheriff's decision is final, as it does in 
 regard to some other matters. An application to remove an 
 arbiter is a civil proceeding, that is to say, an " action " within 
 the meaning of the Sheriff Courts Acts, 1907-1913. The 
 Sheriff's final judgment in the action (appeal to the Court of 
 Session not being excluded by the statute) accordingly appears 
 to be appealable. It is, at all events, appealable by leave to 
 the Court of Session, and, upon a matter of this importance, 
 leave would not likely be refused ; but there is no intermediate 
 appeal to the Sheriff. 
 
 Appendix, s. 3 (d), 28. 8 Ed. VII. c. 64, s. 30.
 
 AGRICULTURAL HOLDINGS. 543 
 
 1236. The arbitration process itself is not conducted id 
 Slieriit' Court, but at any stage the Sheriff may be brought into 
 it, to determine a question of law. The arbiter himself may 
 state questions of law, or the parties may ask the Sheriff to 
 direct the arbiter to do so; but whether lie does it voluntarily, 
 or upon compulsion, the mode of the arbiter submitting the 
 questions of law to the Sheriff is the same. He is directed to 
 "state in the form of a special case for the opinion of the 
 " Sheriff any question of law arising in the course of the 
 "arbitration." 
 
 8 Ed. VII. c. 64, Sch. II., s. 9. 
 
 1237. When the case is stated by the arbiter himself, all 
 that seems to be necessary is that the arbiter, or his clerk, 
 should transmit the arbitration process, including- the special 
 case, to the Sheriff. After hearing- parties, the Sheriff will 
 answer the questions of law; and (unless appeal is taken) the 
 Sheriff-clerk will re-transmit the process to the arbitration clerk. 
 But, where the parties ask the Court to direct the arbiter to 
 state a case, some initial proceedings are obviously necessary; 
 for the arbitration process is not before the Sheriff at all, and 
 a party cannot himself state a special case. The arbiter alone 
 can do so. The appropriate procedure accordingly is for the 
 party desiring the opinion of the Sheriff to present a summary 
 application, narrating the arbitration, and stating the questions 
 of law which have arisen, and craving the Court to direct the 
 arbiter to embody them in a special case. If so directed, the 
 arbiter does not seem to have any discretion. Stating a special 
 case at his own hand is within the arbiter's discretion: he 
 " may " (or may not) state it. But, if directed by the Sheriff, 
 he "shall" state it; and it is apparently imperative upon him 
 also to state the questions of law, not as he himself conceives 
 they should be put, but as the party seeking the special case 
 desires them to be put. The application should be served upon 
 the other party, as well as upon the arbiter, for all interested 
 are, of course, entitled to be heard. The arbitration process 
 must also be transmitted to the Sheriff Court; for the Sheriff 
 must have material before him to satisfy himself that the 
 questions he is asked to answer are really questions of law. 
 Accordingly, the order for service, and appointing a diet for 
 hearing, may embody also an order upon the arbiter to lodge 
 the arbitration process. It would probably be compliance with
 
 544 STATUTORY POWERS AM) DUTIES. 
 
 the statute for the Sheriff to return categorical answers to the 
 questions of law. But there is no more unsatisfactory, and 
 often misleading, form of judicial pronouncement than cate- 
 gorical answers to (often badly stated) questions of law: and 
 the Sheriff does not appear to he precluded from adding to 
 the interlocutor embodying bis opinion on the legal questions 
 a note in accordance with the Sheriff Courl rules. The 
 Sheriff's judgment upon a special case is appealable to the 
 Court of Session. 
 
 Appendix, s. 3 (/,), 50, Rule 82. Brown v. Mitchell. 1910, S.C. 
 
 8 Ed. VII. c. 64. s. 11 (3). Sch. 369. 
 
 II., s. 9. Taylor v. Steel Mail land, 1913, 
 
 50 S.L.R. 395. 
 
 1238. The Agricultural Holdings Act itself does not direct 
 what Sheriff Court is to perform this statutory duty of deter- 
 mining such questions of law; hut an arbitration under this 
 statute appears to fall within the spirit, if not perhaps pre- 
 cisely within the letter, of the first proviso of section 5 of the 
 Sheriff Courts Act, 1907, and such an application seems 
 appropriate in the Sheriff Court of the district where the 
 holding is situated. But an arbitration might, for instance, 
 be proceeding before an arbiter resident and carrying on 
 business in Edinburgh, upon the claim of an ex-tenant now 
 resident in Shetland, for improvements made upon a holding 
 situated in Perthshire, made against a landlord resident in 
 London. In that case, the convenience of invoking the aid 
 of the Sheriff at Perth is not very apparent ; and, in the absence 
 of special direction, it may probably be competent, as it would 
 certainly be convenient, for a special case to be stated in the 
 Sheriff Court to whose jurisdiction the arbiter is subject, in 
 which jurisdiction it may reasonably be said the arbitration 
 process is being conducted. 
 
 Appmdix, s. 5. 7 Ed. VII. c. 51, s. 5. 
 
 1239. Another important duty of the Sheriff under t he- 
 Agricultural Holdings Act is still more vaguely defined— 
 '" When an arbiter has misconducted himself, or an arbitration 
 " or award has been improperly procured, the Sheriff may 
 "set the award aside." What this exactly means is not very 
 apparent. The arbitration itself can hardly be said to have 
 been " improperly procured," short of averments of deliberate
 
 AGRICULTURAL HOLDINGS. 545 
 
 fraud; and it can hardly be meant that the Sheriff is to go 
 back upon the claim itself, to ascertain if the claimant has 
 " improperly procured " an arbitration, in the sense of putting 
 
 forward an improper claim; for the validity of the claim is a 
 matter expressly relegated to the arbiter, not to the Sheriff. 
 This broadly expressed power to set aside the award would ex 
 facie appear to confer on the Sheriff Court a new jurisdiction, 
 to entertain an action to reduce an arbiter's award, but a new 
 and important jurisdiction of this sort is not conferred merely 
 by implication. What is probably contemplated is, not that 
 the award is to be reduced, in the strict legal sense, but that 
 it is to be, as the Act phrases it, " set aside," that is to say, 
 it is to be disregarded in this particular arbitration process. 
 If there is any irregularity in the arbitration procedure, the 
 Sheriff may set aside the award, that is to say, set the whole 
 proceedings aside, leaving the claimant to begin de /mm to 
 set the arbitration machinery in motion. If this is the inten- 
 tion, the appropriate mode of giving effect to it would appear 
 to be for the party challenging the regularity of the arbitration 
 proceedings to present a summary application to the Sheriff, 
 narrating the irregularity complained of, and craving the 
 Sheriff to set aside the award. The statute says nothing about 
 appeal in this matter ; but it, of course, falls within the general 
 statutory provision precluding appeal to the SheritV. As 
 regards appeal to the Court of Session, it seems to be in the 
 same position as the matter of misconduct of the arbiter. 
 8 Ed. VII. c. 64, s. 30, Sch. II., s. 13. 
 
 (3) Bequest of Lease. 
 
 1240. Under the Agricultural Holdings Act, the Sheriff 
 Court is the final Court of appeal in the matter of a bequesl 
 of a lease. The statute empowers a tenant by testaiuentary 
 writing to bequeath the lease of the holding. In that event, 
 the legatee, within twenty-one days, notifies the landlord of 
 the bequest. Within one month, the landlord may notify 
 the legatee that he objects to receive him as tenant under 
 the lease. The legatee may then apply in the Sheriff Court 
 for declarator that he is the tenant. The statute provides 
 that the landlord " may enter appeal ancc and state his grounds 
 " of objection." The use of the term " enter appearance " 
 might perhaps suggest procedure by way of ordinary action, 
 but it seems obvious from the whole context that these words 
 35
 
 546 STATUTORY POWERS AND DUTIES. 
 
 in this statute have not the technical meaning which they 
 have in the Sheriff Courts Acts; and what appears to be 
 contemplated is a summary application, to settle a matter 
 which, t'nun its nature, obviously ought to be expeditiously 
 disposed of, and which the statute which sanctions the appli- 
 cation to the Court "allows" (that is, does not preclude) — 
 and quite evidently contemplates "shall be disposed of in a 
 "summary manner." As in the case of arbitration, the Act 
 is silent upon the forum. That may possibly be determined 
 by the residence (if in Scotland) of the landlord, who will be 
 the defender in the summary application. But declarator 
 of tenancy is a question of heritable right and title, within 
 the meaning of the process direction of proviso 1 of section 5 
 of the Sheriff Courts Act, 1907. Accordingly, it seems to 
 be competent in the Sheriff Court of the district within which 
 the holding is situated. The view that the proceedings are 
 meant to be summary gains force from the fact that in this 
 matter there is no appeal, either to the Sheriff or the Court 
 of Session. It falls within the general provision of the 
 statute that, when the Sheriff-Substitute exercises any juris- 
 diction conferred upon the Sheriff, there is no appeal to the 
 Sheriff, and in this particular matter the Sheriff's decision is 
 declared to be final. 
 
 Appendix, s. 3 [p) ; 5 (Proviso 8 Ed. VII. c. 64, s. 19, 30. 
 
 1); 50. 
 
 2. ARBITRATION. 
 
 (1) Pxivpose. 
 
 1241. The aid of the Sheriff is very frequently invoked 
 for the appointment of an arbiter, or oversman, under the 
 Arbitration (Scotland) Act, 1894. In this matter, the Sheriff 
 Court has a concurrent jurisdiction with the Court of Session; 
 tor the definition of "the Court" is "any Sheriff having 
 " jurisdiction, or any Lord Ordinary." If the parties to an 
 agreement to refer have not named arbiters, or arbiters have 
 not named an oversman, the reference is not thereby invalid, 
 as it formerly was, and the omission can be supplied by the 
 Court. An " agreement to refer " is not defined in the statute, 
 but there must be in some way a concluded bargain that a 
 matter shall be settled by arbitration. 
 57 & 58 Vict. c. 13.
 
 AKl:]Ti;.\T|()\. 547 
 
 (2) Procedure. 
 
 1242. Tlio statute contains no process directions at all, 
 and, if the nomination of an arbiter is no more than a 
 ministerial act on the part of the Sheriff, probably an applica- 
 tion under this statute answers the description of a summary 
 application. In the general case, however, an application 
 under the Arbitration Act is an ordinary action. It may 
 be brought by any of the parties to the agreement to refer. 
 The Court has power to nominate an arbiter (a) where the 
 agreement is to refer to a sole arbiter, and one of the parties 
 will not concur in a nomination; (h) where the agreement is 
 to refer to two arbiters, and one party will not nominate his 
 arbiter. AVhen the crave is to nominate an arbiter, only 
 the other referring party need be called as defender; but 
 when the crave is to nominate an oversman, not only the 
 other party, but the arbiters, should be called, for they are 
 also interested parties. 
 
 57 & 58 Vict. c. 13, s. 2-4. United Creameries Company v. 
 
 Boyd & Company, 1912, S.C. 
 617. 
 
 (3) Forum. 
 
 1243. The statute does not prescribe the Sheriff Court 
 where the application is to be made. But "any Sheriff 
 "having jurisdiction" appears to include the Sheriff to whose 
 jurisdiction the defender is subject, upon one or other of the 
 grounds of jurisdiction set forth in the Sheriff Courts Acts. 
 It seems competent, accordingly, to bring an action, at the 
 instance of one of the parties to the agreement to refer, in 
 the Sheriff Court within whose jurisdiction the other party 
 resides; or where he carries on business; or to which he has 
 been rendered subject by arrestment ad fundandam jurisdic- 
 tionem. It would also appear to be competent (if the defender 
 can be personally cited there) to bring the action in the 
 Sheriff Court of the district where the arbitration is contracted 
 to proceed, if the agreement to refer has named a place (as 
 many commercial contracts with an arbitration clause do); 
 because that is "the place of execution or performance " of 
 the contract to refer. 
 
 Appendix, s. 6 (a), (6), (c), (/").
 
 548 MAT! TORY POWERS AND DUTIES. 
 
 (4) Conduct of Arbitration. 
 
 L244. Tho Sheriff's duty docs not go beyond the nomination 
 of an arbiter or oversman. When he has been nominated, 
 the Sheriff Court's power is exhausted. If it becomes neces- 
 sary to take legal proceedings to compel an arbiter or oversman 
 to execute his office, such proceedings are competent only in 
 the Court of Session. 
 
 Underwood r. Forbes, 1886, 13 R. 465. 
 
 3. Births, &c, Registration. 
 
 (1) Officials. 
 
 1245. The statutes relating to the registration of births, 
 deaths, and marriages, 1854-1910, are administered in Scotland 
 under the supervision of the Sheriff. When a vacancy occurs 
 in the office of a registrar, the Sheriff appoints an interim 
 registrar. Upon the application of the Parish Council, he 
 fixes a time and place for a meeting of the Council for the 
 election of a new registrar, and should any difference arise 
 as to the voting at that meeting "the same shall be settled 
 " summarily by the Sheriff on heaving verbally the parties 
 " or their agents." The Sheriff has the duty to intimate, or 
 to see that the Parish Council clerk intimates, to the Registrar- 
 General, the election of any registrar, or the nomination of 
 any interim registrar. The Sheriff also has power, on the 
 application of the Parish Council or of the Registrar-General, 
 to remove a registrar from office for incompetency or neglect 
 of duty, after hearing parties and taking such proceedings as 
 in his discretion he thinks necessary. 
 
 17 & 18 Vict. c. 80. 10 Ed. VII. 
 
 18 & 19 Vict. c. 29. 1 Geo. V. c. 32. 
 23 & 24 Vict. c. 85. 
 
 (2) Custody of Boohs. 
 
 1246. Certain statutory books are required to be kept by 
 registrars, and it is a statutory direction that these are to 
 be^kept under lock in the register box. A registrar who is 
 superseded, or the representatives of a registrar who has died, 
 are bound to deliver the register box, &c, to the new registrar 
 so soon as he is appointed. If this is not done, the Parish 
 Council may apply to the Sheriff for warrant to arrest the 
 person withholding delivery, and bring him before the Court.
 
 BIRTHS, &c, REGISTRATION. 549 
 
 If the Sheriff, after summary inquiry, is of opinion thai 
 delivery is being a\ il fully refused, he may commit such person 
 to prison till delivery is made. 
 
 17 & 18 Vict. c. 80, s. 24. 
 
 (3) Districts. 
 
 1247. The Sheriff fixes the boundaries of registration 
 districts. He may divide, or unite, parishes or districts, or, 
 for the purposes of the Registration Acts, annex a portion of 
 a parish to an adjoining parish, or a landward portion ol a 
 parish to a burgh, &c. 
 
 17 & 18 Vict. c. 80, s. 10, 11. 23 cS: 24 Viet. c. 85, s. 5 
 
 18 Vict. c. 29, s. 4. 
 
 (4) Form of Action. 
 
 1248. Proceedings under these Registration Acts, where a 
 formal initial writ is necessary, are commenced by a summary 
 application. The proceedings are summary, and may be 
 conducted before the Sheriff or the Sheriff-Substitute. There 
 is no appeal. 
 
 17 & 18 Vict. c. 80, s. 65, 76. 23 & 24 Vict. c. 85, s. 5. 
 
 (5) Forum. 
 
 1249. Proceedings under these Registration Acts are taken 
 in the Sheriff Court within whose jurisdiction the parish is 
 situated. When a parish is situated in more than one sheriff- 
 dom, proceedings are taken in the Sheriff Court of the district 
 within which the Parish Church is situated. An exception 
 to this is an application to have an entry made in the register 
 of neglected entries. This is brought in the Sheriff Court 
 of the district within which the birth, death, or marriage 
 occurred. Another exception is an application for correction 
 of an old register, which is brought in the Court within whose 
 jurisdiction the old register lies. 
 
 17 & 18 Vict. c. 80. s. 9-15, 21. .Milne v. Archibald, 1866, 1 
 
 18 & 19 Vict. c. 29, s. 2. Guth. Sel. Ca. 407. 
 23 & 24 Vict. c. 85, s. 2, 3. 
 
 (6) Informant. 
 
 1250. The registrar obtains from an " informant " the neces- 
 sary information for making entries in the register, and the
 
 550 STATUTORY POWERS AM) DUTIES. 
 
 statute requires the informant to attend upon the registrar. He 
 is not bound to go to the informant seeking the information. 
 If any person whose duly it is to give information to the 
 registrar Hails to do so, within the prescribed statutory time, 
 the registrar may give him a first, and a second, intimation to 
 attend. If he still fail to attend, the registrar may then apply 
 to the Sheriff for warrant to bring him to the registrar's otiice 
 in custody. Such a warrant is granted de />/<uio, upon pro- 
 duction !o the Sheriff of evidence that the two intimations by 
 the registrar have been made. The warrant may be executed 
 by any Sheriff-officer. 
 
 17 & 18 Vict. c. 80, s. 45. 
 
 (7) Correction of Entries. 
 
 1251. If any person discovers that a mistake has been made 
 in the registration of a birth, marriage, or death, it is the 
 statutory duty of that person to " forthwith give information 
 • i hereof to the Sheriff," whereupon the statntoiy procedure 
 is for the Sheriff to appoint a diet for inquiry, and require 
 the attendance of all interested parties. But, in practice, the 
 person who discovers the error is usually the registrar, or, if 
 not, the error is first reported to him, and he attends before 
 the Sheriff, along with the parties who are able to explain the 
 error. The parties required to attend are " any person con- 
 " cerned in the making of such erroneous entry, or having 
 " knowledge regarding the same, and also any person interested 
 " in the effect of such erroneous entry/' In special cases a 
 formal inquiry may be necessary, but in general the proceed- 
 ings are summary. The witnesses are examined on oath, and, 
 if he is satisfied, the Sheriff authorises the correction. But 
 the original entry, though erroneous, is not altered. The 
 Sheriff's warrant directs, not an alteration of the original 
 entry, hut that a fresh entry, with the true particulars, be made 
 in "The Register of Corrected Entries." On the margin 
 opposite the entry in the original register a reference is made 
 to the volume, page, and date of the corresponding entry in 
 " The Register of Corrected Entries." 
 17 & 18 Vict, c. 80, s. 63. 
 
 1252. Mistakes frequently occur in the registration of 
 children's names. Within six months, the registrar has power
 
 BIRTHS, fee, REGISTRATION. 551 
 
 himself to corred the register, by substituting Eor the r< 
 name that which a baptismal certificate, or a declaration of the 
 parents, shows to be the true name of the child. If more than 
 six months have elapsed, the authority of the Sheriff is required 
 to alter the registrar. A summary application may be pre- 
 sented by the parent or guardian, explaining how the i 
 arose, and craving warrant to the registrar to correct the entry. 
 But, although this is competent, and is occasionally done, all 
 that the statute requires to be submitted to the Sheriff is "a 
 " statement of the circumstances," and the common practice 
 is for a parent, or other person conversant with the circum- 
 stances, to attend personally before the Sheriff, along with the 
 registrar, and make the necessary explanation, whereupon the 
 Sheriff, if satisfied an error has occurred, endorses upon the 
 birth certificate a warrant authorising 1 the registrar to correct 
 the entry. 
 
 17 & 13 Vict. c. 80, s. 32. 33. 
 
 (8) Neglected Entru ?. 
 
 12-3-3. The powers of correction of registers do not, however, 
 meet the case of a birth, marriage, or death not having been 
 registered at all. The Sheriff has power, under the Registration 
 Act of 1860, to grant a warrant to enter in a special register, 
 called the "Register of Neglected Entries," such a birth, 
 marriage, or death. For this purpose, any person having 
 interest may present a summary application, narrating the 
 event, and the reasons for seeking an entry to be made, and 
 craving the Court to grant warrant to the Registrar-General to 
 make the entry in the "Register of Neglected Entries." Inti- 
 mation is made, by advertisement or otherwise, and all parties 
 having an interest are entitled to appear and be heard. The 
 Sheriff is directed to make "due inquiry," and, if formal 
 proof is taken, the evidence must be recorded. If the warrant 
 is granted, the Sheriff transmits it to the Registrar-General, 
 along with the notes of evidence, and any productions made. 
 These are retained by the Registrar-General among the records 
 of his office. 
 
 23 & 24 Vict. c. 85, s. 2. 
 
 (!)) Old Registers. 
 
 1254. If an error is discovered in an old register, that is to 
 say, a register kept prior to 1855, any person interested may
 
 552 STATUTORY POWERS AND DUTIES. 
 
 present a summary application, in the Sheriff Court within 
 whose jurisdiction the register lies, setting forth the error, 
 and the correction desired, and craving the Court to authorise 
 the registrar in whose custody the hook is, whom failing, the 
 Registrar-General, to make the necessary correction. The 
 proceedings are summary; but, if proof is taken, the evidence 
 must he recorded, and the notes of evidence and the productions 
 are transmitted to the Registrar-General. 
 
 23 & 24 Vict. c. 85, s. 3. 
 
 (10) Legitimation of Child. 
 
 1255. In the case of an illegitimate child, the register 
 discloses only the name of the mother, not that of the father, 
 unless he signs the register along with the mother as an 
 informant. If the father has done so, and if he afterwards 
 marries the mother of the child, the registrar, upon production 
 of an extract of the registration of the marriage, and upon 
 being satisfied of the identity of the parties, may, at his own 
 hand, make a marking on the register, opposite the child's 
 name, of the date of its parents' marriage, and such a marking 
 is evidence that the child has been legitimated per sttbsequens 
 matrimonium. But, if the father has not been an informant, or 
 if the parents' identity is doubtful, the marking on the register 
 for this purpose can only be made by authority of the Sheriff. 
 This authority can be granted only " upon the joint application 
 " of both parents." Cases of hardship may occur where a child 
 has in fact been legitimated per svbsequens matt imonium, but 
 the legal evidence of this fact could not he noted on the register, 
 because the necessary application by both parties had not been 
 made, and meantime one of the parents had died, or had 
 disappeared. But the statute does not seem to contemplate this 
 important correction, vouching the legal status of the child, 
 being made in the register unless where both parents are still 
 alive, and are available, and both concur in asking the Sheriff 
 to grant the necessary warrant. Such an application should 
 accordingly be made immediately after the marriage. The 
 initial writ should narrate the birth, parentage, and registra- 
 tion of the child, and the fact of the parents' subsequent 
 marriage. The crave is for warrant to the registrar to make 
 the necessary entry in the register. In general, the warrant is 
 granted after hearing the applicants; but the circumstances
 
 BIRTHS, &c, REGISTRATION. 553 
 
 niav suggest that third parties may be interested, or that the 
 alleged facts should he verified, and, accordingly, if it seems 
 to him necessary, the Sheriff may order intimation, or may 
 hear other parties, or may direct inquiry, or take formal proof , 
 before granting the warrant. 
 17 & 18 Vict. c. 80, s. 35, 36. 
 
 (11) Decree of Paternity. 
 
 1256. When in any competent action the paternity of a 
 child has been the subject of judicial decision, the Clerk of 
 Court is required to send by post to the registrar of the district 
 of the father's domicile, or in which the child's birth is regis- 
 tered, notice of the fact that, in an action, described by the 
 names of the pursuer and defender, the Court has on a given 
 date pronounced judgment. Such notice entitles the registrar 
 to mark on the register the effect of the judgment. Such a 
 marking, in the case of an illegitimate child, will disclose the 
 father, and the entry is then in the same position, and has the 
 same effect, as if the father had attended with the mother at 
 the birth registration, and signed the register with her as an 
 informant. So also, if a Court decree has declared a child 
 legitimate, which had been registered as illegitimate, the 
 marking on the register has the effect of legitimising the child. 
 17 & 18 Vict. c. 80, s. 35, Form F. 
 
 (12) Irregular Marriage. 
 
 1257. According to Scots law, marriage is a civil contract, 
 constituted, like any other contract, by consent of the con- 
 tracting parties. But, prior to 1856, the proof of such a 
 contract having been constituted was cumbrous, and often 
 difficult and expensive. One (indirect) mode was by way of 
 prosecution before a justice or magistrate. Upon conviction 
 of having contracted an irregular marriage, either of the 
 parties might obtain an extract of the conviction, and present 
 it to the registrar of the parish of the domicile, or usual 
 residence, of the married persons, and the marriage might be 
 registered there. The other mode was by obtaining in the 
 Court of Session a decree of declarator of marriage, and pre- 
 senting in like manner an extract of the decree to the registrar. 
 By the Marriage (Scotland) Act of 1856, the conviction process 
 was superseded, and a short and convenient process was intro-
 
 554 STATUTORY POWERS AND DUTIES. 
 
 (lucid for obtaining a warrant in the Sheriff Court for the 
 registration of an irregular marriage, provided application is 
 made within three months of the marriage. It is still com- 
 petent to proceed by way of action of declarator, and this seems 
 the only competent way if more than three months has elapsed, 
 but such an action must be taken in the Court of Session, for 
 declarator of marriage is excluded from the consistorial juris- 
 diction conferred upon the Sheriff Court by the Sheriff Courts 
 Acts, 1907-1013. 
 
 Appendix, s. 5 (1). 19 & 20 Vict. c. 96, s. 3. 
 
 17 & 18 Vict. c. 80, s. 48. 7 Ed. VII. c. 51, s. 5 (1). 
 
 1258. It is a popular delusion that the marriage contract 
 itself is entered into before the Sheriff, and in some 
 cases the declaration of the parties that they have accepted 
 each other as husband and wife, is made in the Court, but it 
 is not necessarily so. The function of the Sheriff is only to 
 grant warrant to register a marriage which has been already 
 constituted by declaration, which is usually made a I the 
 registrar's office. The application to the Court is made at the 
 joint instance of the married couple, in the Sheriff Court of the 
 district where the contracting parties accepted each other as 
 husband and wife. It is an ex jiarte summary application, 
 which requires no service or intimation, and it is competent 
 when both, or either, of the contracting parties (a) have lived 
 in Scotland for twenty-one days next preceding the date of the 
 marriage; or (b) had their usual residence in Scotland at the 
 date of the marriage. 
 
 19 & 20 Vict. c. 96, s. 2. 
 
 1259. The initial writ narrates the date, and place, at which 
 the pursuers contracted the irregular marriage, and there is 
 produced along with the initial writ, or more commonly pre- 
 fixed to il (hi ;i printed form, a shorl declaration signed by the 
 parties, in which they declare that they accept each other ;is 
 husband and wife. The crave is for warrant to the registrar 
 of the registration district where the marriage was contracted, 
 to register the marriage. The Sheriff has to be satisfied of 
 the facts set forth in the initial writ, and the common practice 
 is for at least two witnesses who heard the parties accept each 
 other as husband and wife, or who witnessed the declaration 
 being signed, and who know the parties, and the facts as to
 
 BIRTHS, &c, REGISTRATION. 
 
 residence, to attend along with the married couple before the 
 Sheriff, to identify them as the applicants, and to depone on 
 oath as to the facts within their knowledge. If satisfied. Hi" 
 Sheriff grants warrant to register the marriage. 
 19 & 20 Vict. c. 96, s. 3. 
 
 4. Building Societies. 
 
 (1) Geneva]. 
 
 1260. The general policy of the statutes relating to building 
 societies is that disputes are to be settled by arbitration, but 
 in some matters appeal to a Court of law is recognised. In 
 Scotland " the Court " means the Sheriff Court of the district 
 within which the office or place of meeting of the Society is 
 situated. The circumstances in which the aid of the Court 
 may be invoked are — (1) when the society rules direct disputes 
 to be referred to the Court; (2) when the rules provide for 
 arbitration, but (a) a party has been called upon to arbitrate, but 
 for forty days has not complied ; or (b) the arbiters nominated 
 have refused to act; or (c) the arbiters have for twenty-one 
 days failed to make an award. Any interested party may 
 bring a summary application, narrating the facts, and craving 
 the Court to determine the dispute. The proceedings are 
 summary, and the decision of the Court is final, but, at the 
 request of either party, the Court may state a case for the 
 opinion of the Court of Session upon a question of law. 
 
 37 & 38 Vict. c. 42, s. 4, 16 (9). 57 & 58 Vict. c. 47. 
 
 34, 35, 36. Act of Sederunt, 17th March, 
 
 47 & 48 Vict. c. 41. 1882. 
 
 (2) Official,: 
 
 12G1. One duty of the Sheriff, is to deal with defaulting 
 officials. Every official having charge of money, or books, or 
 property of the society is required to find caution that, if called 
 upon to account for money, or to deliver books or property, 
 he will do so. If such an official fail to do so, the society lias 
 a double remedy — (a) to sue upon the bond; or (6) to apply to 
 the Court under the statutes. It the latter course is adopted, 
 a summary application may be presented, narrating the failure 
 of duty complained of, and craving the Court to make an 
 appropriate order. The statutory direction is that the Court 
 "may proceed thereupon in a summary way, ami make such
 
 556 STATUTORY POWERS AND DUTIES. 
 
 " order thereon as to the Court in its discretion shall seem just, 
 " which order shall be final and conclusive." 
 37 & 38 Vict. c. 42, s. 24. 
 
 (3) Li (jut dation. 
 
 1262. The most important duty of the Sheriff Court in 
 regard to building societies is the supervision of their winding 
 up. An application to the Court may be made (a) by a member 
 authorised by three-fourths of the members present at a general 
 meeting of the society specially called for the purpose ; or (b) 
 by a judgment creditor for not less than £50. This is in 
 form a summary application, and the condescendence should 
 set forth the circumstances necessitating the liquidation of the 
 society. In dealing with the application, as well as in all 
 matters connected with the winding up, the Court is to have 
 regard to the wishes of the members and the creditors : and 
 for ascertaining their views the Court may order meetings to be 
 held. The application must be notified in the Edinburgh 
 Gazette, and by service and other advertisement as the Court 
 may order. At the diet in the cause, the Sheriff may hear any 
 person having interest. The Court may (a) dismiss the applica- 
 tion ; or (b) nominate a liquidator; or (c) order the society to 
 be wound up voluntarily under the supervision of the Court, 
 in which event a liquidator will be nominated by the members, 
 and his nomination confirmed by the Court. 
 
 37 & 38 Vict. c. 42, s. 32. Act of Sederunt, 17th March, 
 
 1882. 
 
 5. Burial Grounds. 
 
 12G3. The statutes regulating burial grounds are in Scot- 
 land administered by the Sheriff. The aspect of the matter 
 with which the Sheriff is mainly concerned is that of the public 
 health. The Local Government Board, or a local authority, or 
 ten poor law ratepayers, or two householders residing within 
 100 yards of a burial ground, or proposed burying ground, may 
 bring, in the Sheriff Court of the district where the burial 
 ground, or the land proposed to be used as a burial ground, 
 is situated, a summary application setting forth that the same 
 is or would be " dangerous to health or offensive or contrary 
 " to decency," and craving the Court to find and declare 
 accordingly. The first order is for intimation, by Gazette notice
 
 BURIAL GROUNDS 557 
 
 and advertisement in the local press, fixing a diet, not le.-,> than 
 ten or more than twenty days after the date of I lie first deliver- 
 ance, for hearing all parties interested. It is the Sheriff - 
 statutory duty to hear all parties who have any interest to be 
 heard. He may also dired inquiry, or visit the ground, or 
 otherwise inform himself of the situation. If he is satisfied 
 that the objections arc not well founded, he will dismiss the 
 application. If he is of opinion that the pursuer's allegations 
 are true, his duty is to pronounce an interlocutor to that effect 
 If the application is dismissed, no similar application can be 
 presented till after the expiry of at least five years, except with 
 the concurrence of the procurator- fiscal. 
 
 18 & 19 Vict. c. 68, s. 4. 5. 60 & 61 Vict, c. 38, s. 146 (2). 
 
 L264. The Sheriff's judgment is not in itself an operative 
 judgment to prevent the burial ground being used. The 
 Sheriff's decision is transmitted to the Secretary for Scotland. 
 By order in Council, it may be ordered that no new burial 
 ground shall be opened within specified limits, unless with the 
 approval of the Secretary for Scotland ; or that burials are to be 
 discontinued wholly or partly. Notice that a representation 
 has been made to the Privy Council by the Secretary for Scot- 
 land for an order based upon the Sheriff's interlocutor, and 
 notice of the time and place at which the representation is to 
 be taken into consideration by the Council, is required to be 
 given to the Crown Agent at Edinburgh, and to the Sheriff- 
 clerk, and they, one month before the representation is con- 
 sidered by the Council, make public intimation by notice in 
 the Edinburgh Gazette, and by notice upon church doors, or 
 other conspicuous places, within the parishes affected. 
 18 & 19 Vict. c. 68, s. 5. 
 
 1265. When a burial ground has been closed by an order 
 in Council, it becomes the duty of the local authority to provide 
 another. If this is not done within six months of the closing 
 order, resort may be again had to the Sheriff Court. The 
 same parties are entitled to apply, and in form the process is 
 a summary application, but the procedure is more formal, and 
 the Sheriff's judgment is subject within fourteen days to review 
 by any one of the Lords Ordinary of the Court of Session, w hose 
 decision is final. The initial writ should narrate the closing 
 order, and the failure of the local authority to provide another
 
 558 STATUTORY POWERS AND DUTIES. 
 
 burial ground; and should crave the Court to designate and 
 set apart land for the purpose of a burial ground. Before such 
 designation is actually made, the owner of the lands must get 
 ten days' notice, and is entitled to be heard. If in the course 
 of the proceedings proof is taken, the evidence must be 
 recorded. An interlocutor designating the land entitles the 
 local authority to take the same by compulsory purchase, under 
 the Lands Clauses Act. 
 
 18 & 19 Yict. c. 68, s. 10-13. 
 
 1266. When a parish lies wholly within a burgh, the Town 
 Council, for the purposes of the Burials Act. is the local 
 authority. When a parish is partly within, and partly with- 
 out, a burgh, the Sheriff of the county within which the parish, 
 or the greater portion of it, is situated, may determine whether, 
 for the purposes of the Burials Act, the parish is to be deemed 
 within or without the burgh. The application to have this 
 determined may be at the instance of two parish councillors, 
 or ten ratepayers, or two householders. Advertisement is made 
 in the Edinburgh Gazette and the local press. The proceedings 
 are summary, and the Sheriff's decision is final. 
 
 18 & 19 Vict. c. 68, s. 3, 32. 19 & 20 Vict. c. 103, s. 69. 
 
 6. Clubs. 
 (1) General. 
 
 1267. Under the Licensing (Scotland) Act of 1903, the 
 Sheriff Court, which was not previously a Licensing Court, 
 became the licensing authority for clubs. The Sheriff-clerk is 
 the statutory registrar, and the Sheriff's powers include the 
 granting, renewing, and cancelling of club certificates. The 
 Sheriff Court which has jurisdiction is that of the district 
 within which the club premises are situated. The proceedings 
 may be taken before the Sheriff or the Sheriff-Substitute. 
 The decision of either is final. 
 
 3 Ed. VII. c. 25, Part 5, s. 77- 90. 
 
 (2) Granting Certificate. 
 
 1268. The procedure commences with the lodging with the 
 Sheriff-clerk of an application, or renewal, form. An applica- 
 tion for renewal must be made at least twenty-one days before
 
 CLUBS. 559 
 
 the expiry of the existing certificate. Notice is given by the 
 Sheriff-clerk to (a) the chief officer of police; (6) the town- 
 clerk, if the club premises are within a burgh; or (c) if no1 
 to the clerk of the Parish Council. These parti 
 entitled to object to the granting or renewal of a certifii 
 Although no objection may be made, the Sheriff, ; rant- 
 
 ing a certificate, must be satisfied that the statutory formalities 
 have been observed, and thai the club rules are in conformity 
 with the statute. 
 
 3 Ed. VII. c. 25. s. 79. 
 
 L269. If objections are made, the objector must lodge his 
 objections within ten days of receiving- notice from the Sheriff- 
 clerk of an application having been made. The procedure 
 thereafter is in the discretion of the Sheriff. He is required 
 to hear parties, and he is entitled to " order such inquiry as 
 "he thinks fit." Objection is competent only upon statutory 
 grounds, which include (a) that the club rules do not conform 
 to the statute; (b) that the club is not being conducted in 
 good faith; (c) that the rules are not being observed. 
 3 Ed. VII. c. 25. s. 79 (2), 81. 
 
 (3) Cancelling Certificate. 
 
 1270. The Sheriff has power to refuse the renewal of a 
 certificate, or to cancel it, upon complaint of a qualified 
 objector, if (a) there has been a conviction for contravention 
 of the statute ; (b) the Sheriff is satisfied that the club is being 
 misconducted. When renewal is refused, or the certificate 
 is cancelled, the Sheriff may make an order debarring the 
 use of the premises as a club for a specified period. Upon 
 cause shown, the Sheriff may subsequently cancel or vary this 
 closing order. 
 
 3 Ed. VII. c. 25, s. 85, 86. 
 
 (4) Prosecutions. 
 
 1271. In addition to his civil functions, as the local 
 licensing authority, the Sheriff has also jurisdiction to deal 
 with offences under the statute. Such prosecutions are 
 conducted in the Criminal Court, under the Summary Juris- 
 diction Act. But the right of appeal is result ted to review 
 by the High Court of Justiciary, upon the ground of corruption
 
 560 STATUTORY POWEES AM) DUTIES. 
 
 or malice and oppression on the pari of the judge. Suspension 
 or reduction, or any other form of review, is expressly 
 
 excluded. 
 
 3 Ed. VII. c. 25, s. 102, 103. 
 
 7. Commissioners Cl.yusks Act. 
 
 1272. Public or private .statutes, which set up an 
 authority for the purpose of carrying- on an undertaking, 
 generally incorporate by reference the provisions of the 
 Commissioners Clauses Act of 1847. These include power to 
 appoint officials. If any collector or other officer fails duly 
 to account for his intromissions, he and his cautioner (if any) 
 are, of course, subject at common law to an action of acounting, 
 or of delivery, or of interdict, or other competent process. 
 But the Commissioners Clauses Act affords an alternative 
 summary remedy. If an officer, for five days after being 
 called upon 1o produce a statement of intromissions or to 
 deliver documents, &c, fails to do so, it is competent to serve 
 him with a summary application, and upon that the Sheriff 
 " may hear and determine the matter in a summary way, and 
 " may adjust and declare the balance owing by such officer." 
 
 10 & 11 Vict. c. 16, s. 70, 71. 
 
 1273. The condescendence of the initial writ in this 
 summary application should narrate the appointment of the 
 officer, the requisition to account, and his failure to do so, 
 and crave the Court (a) to ordain the defender to state an 
 account of his intromissions, and to deliver the same, together 
 with all vouchers, books, documents, and effects in his 
 possession or under his control belonging to the pursuers ; (b) to 
 decern against the defender for payment of a stated sum, or of 
 the amount which, upon adjustment of accounts, may appear to 
 be due by him. 
 
 10 & 11 Vict. c. 16, s. 72. 
 
 1274. Service of such a summary application must be 
 made personally, or at the defender's last known place of 
 abode. The crave for accounting and payment, and that for 
 delivery of documents, may competently, and conveniently, 
 be made in the same writ ; but the disposal of the crave for
 
 COMMISSIONERS CLAISKS ACT. 561 
 
 deliveiy of documents, &c, need not necessarily await the 
 issue of the crave for account inn-. It seems contemplated 
 that a peremptory order for delivery may be made at any 
 stage, and that non-implement of such an order would render 
 the defender liable to imprisonment. 
 
 10 & 11 Vict. c. 16, s. 71-72. 
 
 1275. Under this statute, non-payment of the sum found 
 to be due by an official also made him liable to imprisonment; 
 but this enactment was repealed in 1892 ; and at any rate, it had 
 lapsed under the general abolition of imprisonment for debi in 
 1880. But if the official, in this summary application 
 process refuses to make out an account (and not answering 
 to the w r rit at all is obviously refusing to do so) then for 
 this refusal, as well as for refusal to deliver up documents 
 and effects, he appears to be still liable to imprisonment. 
 
 10 & 11 Vict, c. 16, s. 72. 
 
 1276. This statute also appears to preserve a relic of the 
 now practically obsolete ftigce warrant. If there is reason to 
 believe that a defaulting official is about to abscond, upon a 
 deposition to that effect being made before the Sheriff he 
 may grant warrant for the arrest of the official ; but the 
 official may not be detained in custody longer than twenty- 
 four hours without being brought before the Sheriff. A 
 warrant for his further detention may be granted; or he may 
 be released on bail, or discharged, in the Sheriff's discretion. 
 This process is a separate summary application, to be disposed 
 of in a summary manner. 
 
 10 & 11 Vict. c. 16, s. 73. 
 
 8. Companies. 
 
 1277. The Sheriff Court has no general jurisdiction under 
 the Companies Acts, for " the Court " means the Court of 
 Session. The provisions of the Companies Clauses Act of 
 1845, however, so far as not repealed, are imported into the 
 constitution of all joint stock companies, incorporated under 
 any Act of Parliament. Under the statute of 1845, a default- 
 ing official may be dealt with in the Sheriff Court, in a 
 summary manner. An officer of the company who, after being 
 required to do so, fails for three days to produce an account 
 
 36
 
 562 STATUTORY POWERS AND DUTIES. 
 
 of intromissions, or to deliver books or papers in his custody 
 or control may (without prejudice to any other remedy com- 
 petent to the company) be served with a summary application, 
 setting forth the circumstances, and craving- that the defender 
 be ordained to state an account, and to pay any balance arising 
 thereon; as also to deliver to the directors, or to a person 
 nominated by them to receive the same, vouchers or other 
 documents in his custody belonging to the company. 
 8 & .9 Vict. c. 17. s. 1. 113, 114-117. 
 
 1278. To make this summary remedy competent, the 
 official complained against must, of course, be subject to the 
 jurisdiction of the Sheriff Court before which the application 
 is brought. Service must be made personally, or at defender's 
 last known place of abode. The proceedings are summary, 
 and failure to deliver vouchers or documents renders the 
 official liable to imprisonment to the same effect as under 
 the similar provision in the Commissioners Clauses Act before 
 referred to. 
 
 8 & 9 Vict, c. 17. s. 114, 115. 
 
 1279. Another duty, somewhat vaguely defined, resting with 
 the Sheriff Court under the Companies Clauses Act, is the 
 ascertainment of the amount of certain claims, the mode of 
 determination of which is not provided for by the statute 
 itself, or any Act incorporated therewith. The brief 
 statutory direction is that the amount " in case of dispute 
 " shall be ascertained and determined by the Sheriff." This 
 seems to mean that the creditor, in a claim of the sort con- 
 templated, may bring a summary application, stating what 
 the claim is, and what the dispute about it is, and craving 
 the Sheriff to find and declare as the circumstances may 
 require ; and, if necessary, craving also decree for payment. 
 
 8 & 9 Vict. c. 17, s. 144. 146. 
 
 9. Custody of Children. 
 
 (1) Custody Orders. 
 
 1280. The abstract right of a parent to have the custody 
 of his child was qualified by the Custody of Children Act, 
 1891, which entrusted the Court with a discretion {a) to
 
 CUSTODY OF CHILDREN. 563 
 
 refuse custody if the parent's conduct made him an unsuitable 
 guardian; {!>) to make it a condition of transferring the 
 
 custody of a child that the costs of the upbringing of the child 
 should be paid; (c) where an abandoned child has been 
 brought up by a person, or by the parochial authorities, to 
 refuse the parent custody; (</) to order that a child should 
 be educated in the parent's religion. For the purposes of 
 this statute, " parent " includes any person liable at law to 
 maintain a child, or entitled to the custody of a child. 
 
 54 & 55 Vict. c. 3. 
 
 1281. These statutory qualifications of a parent's right arose 
 
 when the parent applied to the Court of Session for an order 
 
 for the custody of a child. Uut an action for the custody of 
 
 a child is now competent in the Sheriff Court, and along with 
 
 this new jurisdiction the Sheriff Court has presumably also 
 
 acquired the statutory right to qualify the parent's rights 
 
 within the limits of the 1891 statute. That such qualification 
 
 may be necessary, would probably afford a good reason for 
 
 the Sheriff, in virtue of his powers under the Sheriff Courts 
 
 Acts, remitting a custody of children case to the Court of 
 
 Session. 
 
 Appendix, s. 5 (2), Proviso 3. 7 Ed. VII. c. 51, s. 5 (2). 
 
 54 & 55 Vict. c. 3. 
 
 (2) Giiardianslti p. 
 
 1282. The Sheriff Court is, under the Guardianship of 
 Infants Act of 18S(J, entrusted with some important powers 
 for regulating the care and upbringing of children. The 
 Sheriff Court, which alone has jurisdiction under this statute, 
 is the Court of the district within which the defender, or any 
 one of several defenders, resides. The Sheriff's powers include 
 (a) nominating guardians; (b) settling differences amongst 
 guardians; (c) regulating the custody of children. But, 
 although he has power to appoint, the Sheriff does not seem 
 to have power to remove, guardians. 
 
 49 & 50 Vict. c. 27. 
 
 (•'!_) Form of Action. 
 
 1283. There is no statutory direction that procedure under 
 these statutes is to be summary, and the Act of 1886 expressly
 
 564 STATUTORY POWERS AND DUTIES. 
 
 makes applicable procedure rules for the time being in force 
 in the Sheriff Court. An application under these statutes, 
 according! v, will take the form, and follow the course of, 
 an ordinary action. 
 
 49 & 50 Vict. c. 27, s. 11 (r). 7 Ed. VII. c. 51, B. 39. 
 
 10. Employers' Liability. 
 (1) Action. 
 
 1284. The Employers' Liability Act, 1880, introduced a 
 statutory kind of action, which can competently be raised only 
 in the Sheriff Court. Prior to 1906 it had this other special 
 feature, that it was competent for either party to require 
 it to be removed to the Court of Session for jury trial. But this 
 privilege was abolished by the Workmen's Compensation Act of 
 1906, which deprived this class of action of appeal for jury trial 
 in Edinburgh, and restricted the right of appeal otherwise to 
 an appeal upon a question of law, by way of stated case. 
 
 43 & 44 Vict. c. 42. 6 Ed. VII. c. 58, s. 14. 
 
 1285. An action laid under the Employers' Liability Act has 
 also this privilege, that it may be conjoined with other actions 
 arising out of the same occurrence, or cause of action, although 
 such other actions may be at the instance of different parties, 
 and in respect of different injuries. 
 
 43 & 44 Vict. c. 42, s. 6. 
 
 (2) Notice. 
 
 1286. An action laid under this statute is not competent 
 unless notice has been given within six weeks, to the employer, 
 that the workman has sustained injury, the nature of which, 
 and the cause of which, must be set forth. Such notice may 
 be officially served, but it is sufficient that it be delivered at 
 the residence or place of business of the employer, or that it 
 be sent by post in a registered letter, which is the most con- 
 venient mode of preserving evidence of the date of notice, and 
 so that which is most commonly adopted. If the employer is 
 a firm or corporation, the notice may be given at any place of 
 business. A defect or informality in the notice is not neces- 
 sarily fatal, unless the Sheriff is of opinion that the employer
 
 EMPLOYERS' LIABILITY. 565 
 
 has been prejudiced; and, in the case of death, failure to give 
 notice does not bar the action, if the Sheriff is of opinion thai 
 there was reasonable excuse for the omission. 
 43 & 44 Vict. c. 42, s. 4-7. 
 
 1287. An action is not timeously brought under this statute 
 unless the first deliverance is dated not more than six months 
 after the occurrence of the accident which caused the injury. 
 This is not a condition which the parties, or the Sheriff, can 
 waive, for it is a statutory condition, in regard to which the 
 Sheriff has no discretion, such as he has in regard to the notice. 
 
 43 & 44 Vict. c. 42-4. 
 
 (3) Assessor. 
 
 1288. In actions under this statute it is competent to call 
 in one or more assessors, where the case is tried before the 
 Sheriff without a jury. The kind of assessor contemplated is 
 probably a medical assessor, as the function of the assessor is 
 " for the purpose of ascertaining the amount of compensation." 
 The power to call in an assessor skilled in machinery, for the 
 purpose of ascertaining where there was defect in an employer's 
 plant, or negligence on the part of his servants, would have 
 been much more useful ; but that does not seem to have been 
 contemplated. In practice assessors are seldom called in. 
 
 43 & 44 Vict. c. 42, s. 6 (2). 
 
 11. Entails. 
 
 (1) Jurisdiction. 
 
 1289. Formerly special powers in the management of 
 entailed estates had to be applied for in the Court of Session. 
 But under various entail statutes the Sheriff Court has in 
 some matters acquired a concurrent jurisdiction. All applica- 
 tions under the Entail Acts, which are competent in the Sheriff 
 Court, are brought in the Sheriff Court of the district where the 
 lands proposed to be affected are situated. The Sheriff has 
 power to grant authority (a) to feu or lease certain lands for 
 building purposes; (b) to excamb certain Lands; (c) to charge 
 the entailed estate with improvement expenditure. 
 
 23 & 24 Vict. c. 95. 38 & 39 Vict. c. 61. 
 
 31 & 32 Vict. c. 84. 45 & 46 Vict. c. 53.
 
 566 STATUTORY POWERS AND DUTIES. 
 
 (2) Procedure. 
 
 1290. Au application under the Entail Acts is a summary 
 application, at the instance of the heir of entail in possession, 
 or, if he is a minor, his tutor or curator, or legal guardian. 
 The application must he intimated to the next heir of entail, 
 in such manner as the Sheriff may direct. Where the next heir's 
 address is known, service, or postal notification, is the obviously 
 convenient mode. If not, intimation should be made to the 
 next heir's factor or commissioner, or known law agent. What 
 the statutes seem to contemplate is that, in some way, the 
 application should be brought to the actual notice of the next 
 heir, or those representing him. Inquiry must be made, 
 whether the application is opposed or not. Newspaper notice 
 is sometimes ordered; and in practice a remit is made to a 
 man of skill to report. 
 
 31 & 32 Vict. c. 84, s. 4. 45 & 46 Vict. c. 53, s. 5. 
 
 (3) Aj>feal. 
 
 1291. Under the Entail Acts no appeal from the Sheriff- 
 Substitute to the Sheriff was contemplated; but the appeal 
 provisions of the Sheriff Courts Acts, 1907-1913, possibly do 
 not now exclude appeal by leave. There is an appeal to the 
 Court of Session. The Entail Acts allow six months for appeal, 
 and the three months' provision of the Sheriff Courts Act, 1907, 
 being applicable only where the time of appeal is not otherwise 
 provided for, an interlocutor in an entail process seems to be 
 an exception under Rule 86, so that appeal is still timeous if 
 taken within six months. 
 
 Appendix, Rule 86. 45 & 46 Vict. c. 53, s. 5. 
 
 31 & 32 Vict, c. 84, s. 4. 
 
 12. Finance Appeals. 
 
 (1) Estate Duty. 
 
 1292. The Finance Act of 1894 created an " estate duty," 
 to be levied upon certain estate passing upon the death of any 
 person. The duty is assessed by the Commissioners, and any 
 person aggrieved has a right of appeal to the Court of Session 
 ( being the Court of Exchequer in Scotland). But, when the 
 value of the property in respect of which a dispute arises does
 
 FINANCE APPEALS. 567 
 
 not exceed 610,000, the Sheriff Courl has a eoncurrenl appellate 
 
 jurisdiction. The appeal, if taken in the Sheriff Court, is 
 brought in the Court of the district (a) where the appellant 
 resides: or (/>) where the estate is situated. 
 
 57 & 58 Vict. c. 30, s. 10. Act of Sederunt, 17th July, 
 
 59 & 60 Vict. c. 28, s. 22. 1895. 
 
 1293. Within a month from the date of notification by the 
 Commissioners of a claim, or a decision upon a claim, an 
 appellant may give notice of appeal to the Commissioners. 
 This notice must be in writing, and accompanied with a written 
 statement of the grounds of appeal. Within a month of the 
 receipt of notice of appeal, the Commissioners are bound to 
 notify the appellant or his agent whether they withdraw their 
 claim, or whether they maintain it in whole or in part. Within 
 a month of the date of this notification, the appellant may 
 present in the Sheriff Court a summary application, narrating 
 the claim or decision of the Commissioners which is complained 
 against, and crave the Court to recall or modify their decision. 
 Service is made upon the Commissioners, or upon the Solicitor 
 of Inland Revenue on their behalf. The Sheriff must hear 
 parties. lie may grant decree granting or refusing the crave, 
 or he may " take such other course in regard thereto as to him 
 " may seem proper." The proceedings are summary. There 
 is no appeal from the Sheriff-Substitute to the Sheriff, but 
 there is an appeal to the Court of Session, which is heard by 
 the judges for hearing appeals under the Lands Valuation Acts. 
 
 57 & 58 Vict. c. 30. s. 10 (5). Act of Sederunt, 17th July, 
 
 59 & 60 Vict. c. 28, s. 22. 1895, s. 1-4. 
 
 10 Ed. VII. c. 8, s. 42 (1). 
 
 1294. In general, the duties, as assessed by the Commis- 
 sioners, must be paid, notwithstanding an appeal, but the Court 
 has power to allow an appeal without payment, or on part 
 payment only, of the duty, if an application is made within 
 fourteen days of the date of notification by the Commissioners 
 that they maintain their claim or decision. A crave to dispense 
 with present payment of the duty may be embodied in the note 
 of appeal, and deaU with as part of the appeal proceedings; or 
 a separate summary application may be made, setting forth 
 the circumstances, and craving leave to bring the appeal with- 
 out payment. The Sheriff is bound to afford the Commissioners
 
 568 STATUTORY POWERS AND DUTIES. 
 
 an opportunity of being heard, but the proceedings are 
 summary. 
 
 Act of Sederunt, 17th July, Act of Sederunt, 19th July, 
 
 1895, s. 6. 1910, s. 10. 
 
 (2) Site Value. 
 
 1295. The Finance Act, 1910, creates duties on land values. 
 For the purposes of the Act, the Commissioners cause a valua- 
 tion to be made of all land, showing separately its total value 
 and its site value, and, if agricultural, its agricultural value, 
 if that is different from the site value. But before definitely 
 fixing the value, the Commissioners are required to notify the 
 owner of their proposed valuation within sixty days ; the 
 owner may submit objections to the Commissioners, and they 
 may amend their proposed valuation. If an agreement as to 
 value is not come to, the owner, or any other person interested 
 in the land, has a right of appeal, in the first place, to one of 
 the referees under the Act, and ultimately to the Court of 
 Session, or, where the value of the land does not exceed £500, 
 to the Sheriff Court. The decision of the Sheriff Court is 
 subject to review by the Lands Valuation Appeal Court of the 
 Court of Session. There is no intermediate appeal from the 
 Sheriff-Substitute to the Sheriff. 
 
 10 Ed. VII. c. 8, s. 26, 27, 33 (4), 41 (1), 42. 
 
 1296. An appeal to the Sheriff, or the Court of Session, as 
 the case may be, must be taken within one month from the 
 date of the decision of the referee. " All forms, procedure, and 
 " provisions applicable to an appeal from a Sheriff-Substitute 
 " to the Sheriff shall be applicable mutatis mutandis to appeals 
 " to the Sheriff Court from a referee." Accordingly, section 
 27 and Rules 86-91 of the Sheriff Courts Act, 1907 (as amended 
 by the Act of 1913), apply, subject to the qualification that 
 the time for appeal is one month instead of three. The appeal 
 might probably take the form of a note of appeal appended to 
 the document upon which the decision of the referee is written. 
 But, being a civil proceeding in the Sheriff Court, it may also 
 take, and it will be most convenient that it should take, the 
 form of an initial writ, narrating the decision of the referee, 
 and the grounds of objection to it, and craving the Court to 
 reverse or alter the referee's decision. The Finance Act, which 
 allows the appeal, does not define in what form the same
 
 FINANCE APPEALS. 569 
 
 shall be heard, tried, and determined, nor does it direct in 
 general terms that it is to be tried summarily. The Act of 
 Sederunt appears to regard it as an ordinary action. 
 
 Appendix, s. 27, 28, Rules 86- Act of Sederunt, 19th July, 
 
 91. 1910, s. 3. 
 
 7 Ed. VII. c. 51, 27, Sch. I., 
 
 Rules 86-91. 
 
 1297. The Court has power to make it a condition of enter- 
 taining- the appeal, that the appellant shall meantime pay, or 
 shall find security for, the duty claimed, in whole or in part. 
 If the appellant desires to bring- an appeal without making 
 payment of the duty, he must make a preliminary application 
 to the Court, crave leave to do so, and specify the grounds upon 
 which he seeks to prosecute an appeal without making- payment. 
 Intimation is ordered to the Commissioners, who are entitled 
 to be heard. This application is disposed of summarily. 
 
 57 & 58 Vict, c 30, s. 10 (4). Act of Sederunt, 19th July, 
 
 1910, s. 9, 10. 
 
 13. Fish Teinds. 
 
 1298. The Fish Teinds (Scotland) Act, 1864, created an 
 exception to the general rule that the Sheriff Court is not a 
 Teind Court. That statute makes it lawful to commute fish 
 teinds, and the proceedings for fixing the amount of the capital 
 sum to be substituted for vicarage teinds payable to a parish 
 minister may be taken in the Sheriff Court of the district 
 where the parish is situated. If a parish is situated in more 
 than one sheriffdom, the Court is that of the sheriffdom in 
 which the larger portion of the parish is situated. " Sheriff " 
 includes " Sheriff-Substitute," and the Sheriff Court proceed- 
 ings are not subject to review. The persons liable in payment 
 of the fish teind, or any ten of them, may present a summary 
 application narrating briefly the position, and craving the 
 Court to convene a meeting to take into consideration the 
 commutation of the teinds, and resolve thereupon. No 
 defenders need be called. 
 
 27 & 28 Vict. c. 33, s. 4, 5. 
 
 1299. The first duty of the Sheriff is to settle the roll of 
 persons liable to pay the teind. To this end, the Sheriff makes 
 an order upon the parish minister, or the collector of fish 
 teinds, to lodge the current year's roll. The next order is that
 
 570 STATUTORY POWEKS AM) DCT1KS. 
 
 this roll be printed, and posted for fourteen days on the parish 
 church door, and such other public places as may be ordered. 
 The Sheriff-clerk, upon the expiry of the fourteen days, has 
 the duty of revising- the roll. He may expunge names, or add 
 names, but he must before expunging a name give "due inti- 
 " mation " of his intention to do so. The statute does not 
 prescribe any procedure for settling a dispute as to whether a 
 name should be on the roll, but presumably such a dispute will 
 be settled by the Sheriff summarily. When the roll has been 
 revised, it is attested by the signature of the Sheriff, and the 
 Sheriff-clerk, and is then final and conclusive for the purposes 
 of the statute. The roll remains in the custody of the Sheriff- 
 clerk, open to inspection by the public. 
 
 27 & 28 Vict. c. 33, s. 6. 
 
 1300. The roll being settled, the Sheriff convenes a meeting 
 of the parties whose names are on it, upon at least eight days' 
 notice, public intimation being made by advertisement signed 
 by the Sheriff-clerk, and intimation on the church door. The 
 Sheriff presides at the meeting, which may resolve that the 
 fish teinds shall be commuted. If so resolved, the meeting 
 may (a) there and then approve of a deed of agreement to carry 
 out the resolution ; (b) adjourn for twenty-one days, that a 
 deed may be prepared ; or (c) resolve that the basis of com- 
 mutation be fixed by arbitration. At this meeting the vote of 
 a majority of the persons present binds, not only the minority 
 present, but all whose names are on the roll. The statute does 
 not contemplate an equality of votes. In the ordinary case, a 
 chairman has not a double vote, and this statute does not give 
 him a casting vote. Indeed, so far as statutory direction goes, 
 it does not appear that the Sheriff has a vote at all, for his 
 name is not on the roll, and only those on the roll seem 
 entitled to vote. 
 
 27 & 28 Vict, c. 33, s. 7. 
 
 1301. If the meeting resolve upon arbitration, the reference 
 is to a sole arbiter, but he is not nominated by the meeting. 
 He is selected by the (a) three ratepayers appointed at the 
 meeting to carry out the commutation; (b) the presbytery; 
 (c) the parish minister. Each of these elements has one vote 
 only. AVhen a final award has been pronounced, it is lodged
 
 FISH TEINDS. 571 
 
 with the Sheriff-dork, and recorded in the Sheriff Court Ik ml 
 If the arrangement is embodied in a deed of agreement, that 
 also is recorded in the Sheriff Court books. 
 
 27 & 28 Vict. c. 33, s. 9-12. 
 
 1302. The capital sum fixed by the deed or the award " shall 
 "be raised and provided by the persons resident in the parish 
 "who are liable in payment of fish teinds." This sinn is 
 directed to be invested in heritable security, " under the 
 " direction of the Sheriff and of the procurator and agent of 
 " the Church of Scotland." The title is taken in name of the 
 Moderator and Clerk of the Presbytery and the Procurator of 
 the Church and their successors in office as trustees, and the 
 interest is payable half-yearly to the parish minister. 
 27 & 28 Vict. c. 33, s. 13. 
 
 14. Friendly Societies. 
 (1) General. 
 
 1303. A leading principle in legislation affecting friendly 
 societies is that disputes, failing adjustment by the parties 
 interested, are to be settled by arbitration. But in some 
 circumstances resort may be had to a Court of law. The 
 rules of such societies generally prescribe the manner of 
 legal procedure. If not, the process directions of the statutes 
 1893-1908 are to be followed. Failing such directions, the 
 rules of the Sheriff Courts Acts, 1907-1913, apply. 
 
 56 & 57 Vict. c. 39. 8 Ed. VII. c. 32. 
 
 59 & 60 Vict. c. 25. 
 
 (2) Industrial Societies. 
 
 1304. Under the Industrial and Provident Societies Act 
 of 1893, it is competent for the society, or for a member, to 
 apply to the Sheriff Court of the district in which the society 
 is registered, "to hear and determine" a dispute; but such 
 application is competent only (a) where the rules contain no 
 direction as to disputes; or (6) where arbitration has been 
 called for under the rules but for forty days no decision has 
 been given. Such an application is a summary application. 
 There" is no appeal proper, but the opinion of the Court of
 
 572 STATUTORY POWERS AND DUTIES. 
 
 Session upon a question of law may be taken by way of 
 
 stated case. 
 
 Appendix, s. 3 (p), 50. 56 & 57 Vict. c. 39, s. 49 (5), (6). 
 
 1305. Under this statute, a society requiring to sue a 
 member for a debt has the option of suing either in the 
 Sheriff Court of the district where the registered office of the 
 society is situated, or in that of the district where such 
 member resides. If the member has no residence in Scotland, 
 the action can, of course, only be brought in the district of 
 registration. 
 
 56 & 57 Vict. c. 39, s. 23. 
 
 (3) Friendly Societies. 
 
 1306. Under the Friendly Societies Acts, 1896-1908, disputes 
 may be settled in like manner. But " dispute " in the Acts 
 of 1876 and 1908 receives so wide an interpretation that in 
 some cases the form of action may require to be a declarator. 
 An application to the Court of Session for an opinion upon a 
 point of law is too late after final judgment has been given 
 in the Sheriff Court, the object of the stated case provision 
 being to enable the Sheriff to take the opinion of the Court 
 of Session before giving final judgment. 
 
 59 & 60 Vict. c. 25, s. 68 (6), (7). Lanark C. C. v. Motherwell 
 
 8 Ed. VII. c. 32, s. 6. Magistrates, 1912, S.C. 1251. 
 
 Smith v. Scottish Legal Society, 
 1912, S.C. 611. 
 
 1307. One of the matters which the Act of 1896 authorises 
 the Sheriff to deal with is default by an officer of a society, 
 who fails to account for money or to deliver property held 
 by him. An order made by the Sheriff is final. If the 
 case has a fraudulent element in it, the proceedings may take 
 the form of a criminal complaint for withholding or misapply- 
 ing property. In ordinary practice, if the fraudulent element 
 is not proved, the complaint would, of course, be dismissed ; 
 but the Act of 1908 creates a curious novelty in procedure. 
 If it is not proved that the respondent acted with fraudulent 
 intent, he is not convicted; but he may nevertheless be ordered 
 to deliver property or pay money, and such order is enforce- 
 able as a civil decree. 
 
 59 & 60 Vict. c. 25, s. 55, 87 (1). 8 Ed. VII. c. 32, s. 9.
 
 IKTENDLY SOCIETIES. 573 
 
 1-508. A member of a registered friendly society, or a 
 person claiming through a member, instead of laying his 
 action against the society or its trustees, may lay it against 
 "any officer or person who receives contributions or issues 
 "policies on behalf of the society or branch within the 
 ''jurisdiction of the Court in which the legal proceeding is 
 " brought with the addition of the words ' on behalf of the 
 "'society or branch' (naming the same)." A society with 
 officers in all parts of Scotland accordingly appears liable to 
 be sued by a member in any Sheriff Court to whose jurisdiction 
 any of its collecting agents is subject. Such an action has 
 also this service privilege — it may be served (a) personally ; 
 (b) at any place of business of the society within the jurisdic- 
 tion of the Court in which the action is brought ; (c) if the 
 place of business is closed, by fixing the service copy of the 
 writ upon the outer door, in which event a copy is also to be 
 sent, by registered letter, to the registered office of the society 
 or branch, at least six days before any further step in the 
 process is taken. 
 
 59 & 60 Vict. c. 25, s. 94. 
 
 1309. In friendly society actions, certain statutory 
 privileges are accorded to some documentary evidence. A 
 document bearing the seal or stamp of the central office is 
 received in evidence without further proof ; and a document 
 bearing to be signed by a statutory official is deemed to be 
 signed by him, and is received in evidence without proof of 
 the signature, unless there is evidence to the contrary. 
 
 59 & 60 Vict, c. 25, s. 100. 
 
 15. Heritable Securities. 
 (1) Jurisdiction. 
 
 1310. The Heritable Securities (Scotland) Act of 1894 very 
 materially extends the powers of a heritable creditor in dealing 
 with the subject of the security. But the authority of the 
 Court is required to operate the provisions of the Act. Pro- 
 ceedings are competent only in the Sheriff Court of the district 
 where the heritable security is situated, or if the lands lie 
 in different sheriffdoms, or different districts in the same 
 sheriffdom, then in the Court of either sheriffdom or either 
 district, as the case may be. 
 
 57 & 58 Vict. c. 44, s. 15.
 
 574 STATUTORY POWERS AND DUTIES. 
 
 ('J) Interdict against Heritable Creditor. 
 
 1311. "Any person interested may take proceedings to 
 " interpel the creditor from tMitering- into possession of the 
 
 " lands disponed in security or collecting the rents thereof." 
 The statute does not define either a "person interested" or 
 " proceedings." Lodging a caveat against an initial warrant 
 being granted in an action of maills and duties might he 
 regarded as taking proceedings, and would probably be the 
 simplest mode. But the statute appears to contemplate also 
 a direct action of interdict, which would follow the usual 
 course of an ordinary action. The condescendence should 
 briefly narrate the pursuer's title and interest to sue, and the 
 grounds upon which the creditor is sought to be interpelled 
 from exercising his powers. Who may pursue such an action 
 is a question of circumstances, to be determined by the Court 
 in each case. No general rule can be laid down, but a 
 " person interested " would obviously include such persons 
 as a purchaser from the proprietor, or another bondholder, 
 or a tenant who challenges the validity of the heritable 
 creditor's title. 
 
 57 & 58 Vict. c. 44, s. 4. 
 
 (3) Ejection of Projrrietor. 
 
 1312. When a proprietor is in occupancy of the security 
 subject, and has failed to make punctual payment of interest, 
 or after formal requisition has failed to pay the principal 
 sum in the bond, he is deemed to be an occupant without a 
 title, and the heritable creditor " may take proceedings to 
 " eject him in all respects as if he were such occupant." The 
 proceedings will accordingly take the form of an ordinary 
 action. The initial writ should narrate the pursuer's title, 
 the fact that the proprietor is in occupancy of the subjects, 
 and the particulars of the demand for payment of interest or 
 principal as the case may be. The crave will be for warrant 
 to eject the defender and interdict him from resuming occu- 
 pancy. A heritable creditor, suing this action in virtue of 
 the statute of 1894, is not a landlord within the meaning of the 
 removings clauses of the Sheriff Courts Act, 1907, and the 
 action is not a removing process in the sense of that statute. 
 Accordingly a proprietor in occupancy, who defends such an 
 action, is not required to find caution for violent profits. 
 57 k 58 Vict. c. 44, s. 5.
 
 HERITABLE SECURITIES. 575 
 
 (4) Leasing Security Subjects. 
 
 1313. The statute of 1894 authorises a heritable creditor 
 in possession to lease the security subject for a period not 
 exceeding twenty-one years, or thirty-one years in the case 
 of minerals. Up to seven years, the heritable creditor may 
 let on lease at his own hand. If the term of lei is to exceed 
 seven years, he requires to have the authority of the Court. 
 The only statutory process direction for obtaining such judicial 
 authority is the quite general one that the Sheriff is to make 
 "such intimation and inquiry as he may think proper"; but 
 service is directed to be made upon the proprietor and the other 
 heritable creditors, and there is a qualified right of appeal, 
 so that the statute seems to contemplate formal procedure, 
 and the proceedings should accordingly take the form of an 
 ordinary action at the instance of the heritable creditor, calling 
 as defenders the proprietor and any other heritable creditors. 
 The initial writ should describe the portion of the security 
 subject which is proposed to be let, and set forth the proposed 
 terms and conditions. The crave is for authority to lease 
 on these terms. Whether appearance is made or not, the 
 Sheriff must institute inquiry. He may order any intimation 
 he thinks necessary, or make a remit to a reporter, and he 
 is not to sanction the leasing of the subjects unless he is 
 satisfied (1) that all parties interested have been notified and 
 had an opportunity of being heard ; and (2) that the let " is 
 "expedient for the beneficial occupation of the lands." 
 57 & 58 Vict. c. 44, s. 6-7. 
 
 (•3) Realising Security Subject. 
 
 1314. The most important proceeding before the Court is 
 that for the purpose of converting the bondholder into an 
 absolute proprietor of the security subjects, when they are 
 unsaleable at a price to cover the bonds. The market is first 
 tested, not under order of Court, but by the heritable creditor 
 himself. If a sale is not made, the creditor may then apply 
 to the Court to forfeit the redemption right. The process is in 
 form an ordinary action of declarator. 
 
 57 & 58 Vict. c. 44, s. 8. 
 
 1315. The initial writ should describe the security subjects, 
 and narrate the exposure for sale, and the failure to sell. The
 
 576 STATUTORY POWERS AND DUTIES. 
 
 crave is (a) for declarator that the proprietor has forfeited his 
 right of redemption under the bond, and that the same has been 
 extinguished aa at the date of the Court decree; and (b) that 
 the heritable creditor is vested in the lands as absolute pro- 
 prietor, subject to the burdens and conditions of the bond, at 
 the price at which the lands were exposed and failed to find a 
 purchaser, or the price at which they were bought in, as the 
 case may be ; (c) for warrant to register the decree of Court in 
 the Register of Sasines. 
 
 57 & 58 Vict. c. 44, s. 8, Sch. D. 
 
 1316. If appearance is entered, it may be necessary to 
 make up a formal record and take proof, but in the general 
 case the action is undefended. Decree of declarator is not, 
 however, granted de piano, for the statute contemplates inquiry, 
 whether the application is opposed or not. The Sheriff is 
 directed to grant decree only if he is satisfied that it should be 
 granted, " after such intimation and inquiry as he may think 
 " fit." The mere fact that defenders called have not appeared 
 does not necessarily infer that decree should be granted. Other 
 parties may be interested, or the requisite formalities may not 
 have been observed. The usual course is to make a remit to a 
 law agent to report, and if the proceedings are reported to have 
 been regular, decree is granted. The extract must describe 
 the lands, and, when it has been recorded in the Register of 
 Sasines, the extract operates to disencumber the lands of all 
 securities and diligences posterior to the pursuer's bond. 
 57 & 58 Vict. c. 44, s. 8. 
 
 1317. The Sheriff is not bound to grant decree. It is in 
 his discretion to again test the market, by ordering the lands 
 to be exposed at a price fixed by him. At the exposure the 
 heritable creditor may bid. If he purchases, the decree is 
 expressed in the same terms, except that the price at which 
 the heritable creditor is declared to have become proprietor 
 is the price at which he has purchased at the judicial sale, not 
 the price at which the lands were exposed before the application 
 was presented. If a surplus arises upon the sale, it is consigned 
 in bank, as provided by the Conveyancing Act of 1868. If 
 there is no surplus, a notarial certificate to that effect is 
 obtained, and registered as prescribed by the Conveyancing
 
 HERITABLE SECURITIES. 577 
 
 Act, 1874. Consignation of a surplus, or recording a certificate 
 of no surplus, completes the title of the heritable creditor as 
 purchaser, and has the effect of disencumbering the land- of 
 all securities and diligences, but the debtor's personal obliga- 
 tion remains, so far as it has not been extinguished by the 
 price at which the lands have been acquired. 
 
 31 & 32 Vict. c. 101, s. 122. 57 & 58 Vict. c. 44, s. 9. 
 
 37 & 38 Vict. c. 94, s. 48. 
 
 (6) Pari Passu Security. 
 
 1318. A heritable creditor, who cannot get the consent of 
 his fellow-bondholders to bring the subjects to sale, may apply 
 to the Court for authority to sell. This is an ordinary action. 
 The initial writ should describe the lands, and the pari passu 
 securities by their dates, and set forth the efforts made, and 
 the failure to obtain, consent to exposure. The crave is for 
 warrant to expose the subjects for sale at an upset price to 
 be fixed by the Court. The proprietor, and the other bond- 
 holders, will be called as defenders. If appearance is entered, 
 the procedure follows the usual course of an ordinary action, 
 but the Sheriff must make inquiry if no appearance is made. 
 The practice is to make a Temit to a reporter. If he is satisfied 
 that " it is reasonable and expedient that such sale should take 
 " place," the Sheriff fixes an upset price, and nominates a person 
 to carry through the sale, and to grant the necessary deeds 
 to give the purchaser a title. This person may be a party in 
 the cause, or an outsider. 
 
 57 & 58 Vict. c. 44, s. 11. 
 
 (7) Notice. 
 
 1319. The Conveyancing Act of 1868 required a demand for 
 payment of a heritable debt to be made upon the debtor (a) 
 personally ; or (6) at his dwelling-place if within Scotland ; or 
 (c) if furth thereof, edictally. But difficulty was often 
 experienced in finding out the proper person to whom 
 premonition should be made, when the original debtor 
 had died, or had disappeared. The statute of 1894 
 met this difficulty by extending the circumstances in 
 which by leave of the Court the premonition might 
 be edictal, to cover (a) where the debtor has died, and his 
 heir has not made up a title; (6) where the heir's name or 
 
 37
 
 578 STATUTORY POWERS AND DUTIES. 
 
 address cannot be ascertained ; (c) where the debtor's address 
 is unknown; (d) where it cannot be ascertained whether the 
 debtor is alive; (e) where the address cannot be obtained of 
 any person leg-ally entitled to receive premonition. In any of 
 these cases, the heritable creditor may apply in the form of an 
 ex parte summary application to the Sheriff Court of the district 
 where the security subject, or any portion thereof, is situated, 
 for warrant to make premonition at the office of the Keeper 
 of Edictal Citations. The initial writ should narrate the 
 circumstances sufficiently fully to enable the Court to judge 
 whether a warrant should be granted. The Sheriff is 
 empowered to make such inquiry as he may think fit, and 
 before granting the warrant he may order intimation by 
 advertisement or otherwise. The interlocutor granting the 
 warrant must state the particular persons, or their representa- 
 tives, to whom the edictal intimation is to be made. 
 
 31 & 32 Vict. c. 101, s. 119. 57 & 58 Vict. c. 44, s. 16. 
 
 (8) Appeal. 
 
 1320. As regards applications for authority to lease, or 
 for decree of declarator that the right of redemption is forfeited, 
 or for sale by a pari passu bondholder, the statute provides 
 " the interlocutor of the Sheriff who pronounces any order or 
 " decree shall be final, and not subject to review, except (1) as 
 " to questions of title ; and (2) where the principal sum due 
 " under the heritable security exceeds £1000." 
 
 57 & 58 Vict. c. 44, s. 12. 
 
 16. House Rating. 
 
 1321. The House Letting and Rating (Scotland) Act, 1911, 
 applies to a burgh, or a district of a county formed under the 
 Public Health or Local Government Acts, where the Act has 
 been adopted. In such burgh or district a " small dwelling- 
 " house means a house of a valued rental of (a) £10 or under, 
 "if the population is under 20,000; (b) not exceeding £15, if 
 " population between 20,000 and 50,000; and (c) not exceeding 
 " £21, if population 50,000 or upwards." Such houses are now 
 let for shorter terms than a year. The incidence of assessment 
 has accordingly been altered. Occupiers' assessment is to be 
 now paid by the owner, who is to receive a deduction to cover
 
 HOUSE RATING. 579 
 
 cost of collection, not exceeding 2\ per cent. For fixing the 
 amount of this deduction (a) the assessing authority, or (b) 
 ten or more persons having an interest, may present a summary 
 application in the Sheriff Court within whose jurisdiction the 
 assessments are levied, craving the Court to fix the amount of 
 such deduction. The Sheriff may order intimation by adver- 
 tisement or otherwise, and, after such inquiry, as he may 
 deem necessary, he may fix a scale of deduction, which holds 
 good for five years. The decision of the Sheriff or Sheriff- 
 Substitute who fixes the percentage is not subject to review. 
 1 & 2 Geo. V. c. 53, s. 7 (6). 
 
 IT. Housing and Town Planning. 
 (1) Jurisdiction. 
 
 1322. The Sheriff Court is the Court of Appeal against 
 orders made by a local authority under the Housing of the 
 Working Classes Acts, 1890-1909. When houses are let for a 
 rent not exceeding £16, a local authority may require the 
 landlord to execute work to make the houses habitable ; and, 
 if the landlord does not comply with the order, the local 
 authority may execute the work, and recover the cost from the 
 landlord. A local authority may also order any dwelling-house 
 to be closed if, upon the representation of the medical officer, 
 they think the house unfit for habitation. Against such orders 
 the landlord may appeal to the Sheriff Court of the district 
 within w r hose jurisdiction the property is situated. 
 
 9 Ed. VII. c. 44, s. 14-17. 
 
 (2) Procedure. 
 
 1323. The appeal takes the form of a summary application, 
 narrating the order complained against, and craving the Court 
 to quash it. The procedure is entirely in the discretion of the 
 Sheriff, and his decision is final ; but at any stage of the pro- 
 ceedings, before final judgment, the Sheriff may state a special 
 case for the opinion of the Court of Session, upon questions of 
 law. After the Sheriff has finally pronounced judgment, it 
 is too late to seek the opinion of the Court of Session. 
 
 9 Ed. VII. c. 44. s. 39. Johnston's Trustees v. Glasgow 
 
 Act of Sederunt, 4th Nov., 1910. Corporation (1911), 1912. S.C. 
 
 Kirkpatrick v. Maxweltovvn 300. 
 
 Local Authority (1911), 1912. 
 
 S.C. 288.
 
 580 STATUTORY POWERS AND DUTIES. 
 
 18. Husband and "Wife. 
 (1) General. 
 
 1324. Prior to 1861 a wife's personal property, and the 
 
 rents of her heritable property, passed to the husband, and he 
 
 became liable for her debts. The law in these respects has been 
 
 altered by the Conjugal Rights (Scotland) Acts of 1861 and 
 
 1874, and the Married Women's Property (Scotland) Acts of 
 
 1877 and 1881. A wife may now invoke the aid of the Court 
 
 to protect her property against her husband and his creditors, 
 
 and the husband has only a limited liability for the wife's 
 
 ante-nuptial debts. Originally the Court of Session alone had 
 
 jurisdiction in these matters, but the Sheriff Court has now 
 
 concurrent jurisdiction. 
 
 24 & 25 Vict. c. 86. 40 & 41 Vict. c. 29. 
 
 37 & 38 Vict. c. 31. 44 & 45 Vict. c. 21. 
 
 (2) Protection Order. 
 
 1325. A wife deserted by her husband may apply to the 
 Court for an order protecting her property against her husband 
 and his creditors. If made in the Sheriff Court, such an 
 application is brought in the Court of the district to whose 
 jurisdiction the deserted wife is for the time being subject. 
 Such an application is an ordinary action. The husband is 
 called as defender. Service upon him is made in the usual 
 manner, if his address is known. If not, the service may be 
 edictal. The initial writ should briefly narrate the desertion, 
 and the circumstances which render the application necessary. 
 The crave is for a protection order in terms of the statute. 
 
 24 & 25 Vict. c. 86, s. 1. 37 & 38 Vict. c. 31, s. 2 (3). 
 
 1326. Public intimation of the application may be ordered. 
 The husband's creditors, or any person claiming an interest 
 through the husband, may appear to oppose the application. 
 If proof is necessary, the usual rules apply, except in one 
 particular. Contrary to the usual rule, proof in this kind of 
 action may be taken on commission. The facts upon which the 
 Sheriff must be satisfied are (a) that the wife has been deserted ; 
 (b) that the desertion has been without reasonable cause. If 
 he is satisfied, the Sheriff may grant the order sought. The
 
 HUSBAND AND WIFE. 58] 
 
 interlocutor will direct intimation in a newspaper circulating 
 in the district within which the wife is resident, and in any 
 other newspapers the Sheriff may order. Such an interlocutor, 
 when so intimated, vests the wife's property in herself, as if sin; 
 were unmarried, and has the effect of a decree of separation a 
 mensa et thoro, as regards the property rights and obligations 
 of the husband and wife, and as regards the wife's capacity to 
 sue or be sued in matters relating to the protected property. 
 
 24 & 25 Vict. c. 86, s. 1-4-5. 37 & 38 Vict. c. 31, s. 2 (1) (2). 
 
 1327. It is competent for the husband, or his creditors, or 
 a person claiming through him who has not appeared in the 
 protection order process, to apply for recall of the order. Such 
 an application is an ordinary action. The initial writ should 
 set forth the applicant's title to sue, and briefly narrate the 
 circumstances upon which the application for recall is 
 grounded. The crave is for recall of the order. Service should 
 be made upon the w T ife if her address is known, or edictally 
 if it is not known, or if she is furth of Scotland. This applica- 
 tion may competently be made in any Sheriff Court to whose 
 jurisdiction the wife is for the time being subject, but if a 
 prior application for recall has been made in some other Court, 
 the second application is remitted to the first Court. An 
 interlocutor recalling an order is published in the same manner 
 as an interlocutor granting an order, and it has the effect of 
 restoring the legal position as between husband and wife, but 
 it does not affect any right or interest which, in bona fide, a 
 third party has onerously acquired from the w T ife. 
 
 24 & 25 Vict. c. 86, s. 2. 37 & 38 Vict, c. 31, s. 2 (3) (5). 
 
 (3) Wife's Debt. 
 
 1328. If a husband is sued for an ante-nuptial debt of his 
 wife, the Court is bound, whether the action is defended or not, 
 to make inquiry into the nature and amount of the property 
 or interest which the husband has obtained through the 
 marriage, because it is now competent to grant decree against 
 the husband only to the extent of the value of such property. 
 The mode of ascertaining this value is in the discretion of the 
 Court, who for this purpose may "direct any inquiry or pro- 
 " ceedings which it may think proper." 
 
 40 & 41 Vict. c. 29. s. 4.
 
 582 STATUTORY POWERS AND DUTIES. 
 
 (1) Husband's Consent to Deeds. 
 
 1320. Where a wife has been deserted, or is living separate 
 with her husband's consent, the Sheriff may dispense with the 
 husband's consent to any deed relating to the wife's estate. 
 This is an ex parte summary application at the instance of the 
 wife. The initial writ should briefly oarrate the circumstances 
 of the spouses, and the general nature of the property belonging 
 to the wife, and the deeds proposed to be granted. If the 
 application is made in respect of some particular deed, it should 
 be set forth, or it should be produced in process. The usual 
 procedure is to take a deposition from the wife, or others who 
 are acquainted with the circumstances. 
 44 & 45 Vict. c. 21, s. 5. 
 
 19. Judicial Factors. 
 
 (1) Jurisdiction. 
 
 1330. Prior to 1880, no judicial factor could be appointed 
 in the Sheriff Court, however small the estate to be adminis- 
 tered. The Court of Session alone had power to appoint, or to 
 exercise supervision over, a judicial factor. The powers of the 
 Court of Session are set forth in the Pupils Protection Act of 
 1849. A statute of 1880 extended this jurisdiction to the 
 Sheriff Court, but in the Sheriff Court statute the expression 
 "judicial factor" has a restricted meaning, and applies only 
 to a factor loco tutoris or a curator bonis. The jurisdiction is 
 further restricted to cases where the yearly value of the estate 
 does not exceed £100. 
 
 12 & 13 Vict, c. 51. Act of Sederunt, 14th January, 
 
 43 & 44 Vict, c. 4. 1881. 
 
 (2) Procedure. 
 
 1331. Within the limits of its jurisdiction, the Sheriff 
 Court has power (a) to appoint a factor ; (b) to recall an 
 appointment ; (c) to fix caution to be found by the factor ; (d) 
 to grant the factor special powers; and (e) to discharge the 
 factor. There is an appeal from the Sheriff-Substitute to the 
 Sheriff in regard to all matters respecting which, if the applica- 
 tion had been made in the Court of Session, there would have
 
 JUDICIAL FACTORS. 583 
 
 been appeal from the Lord Ordinary to the Inner House. The 
 decision of the Sheriff is final. 
 43 & 44 Vict. c. 4 (5). 
 
 1332. An application to the Sheriff Court for the appoint- 
 ment of a judicial factor is a summary application. When an 
 appointment has been made, the process subsists till the factor 
 has been discharged. Incidental applications, as, for instance, 
 for special powers, or for discharge, are made, not in a separate 
 process, but by a note lodged in the original process. The 
 process, accordingly, does not fall asleep by the lapse of a 
 year and day, and in that respect it is a statutory exception 
 to the general process regulations in the Sheriff Court. 
 
 Appendix, s. 3 (p), Rule 101. Act of Sederunt, 14th January, 
 
 1881, s. 1, 2. 
 
 1333. The application-is competent only in the Sheriff Court 
 of the district where the pupil or insane person resides. The 
 initial writ should narrate briefly the interest of the applicant 
 to present the application, and the circumstances in which the 
 appointment of a factor is necessary, and that the estate does 
 not exceed £100 in yearly value, and crave the Court to 
 nominate a factor. The application is intimated on the Court 
 walls, and to the Accountant of Court. The Sheriff may also 
 order, and in practice does generally order, public intimation 
 by newspaper advertisement. He may also order intimation, 
 by registered letter, to any person appearing to have an interest. 
 The matter is usually disposed of upon a hearing, but, if the 
 circumstances seem to require it, answers may be ordered, and 
 proof taken. The Sheriff must be satisfied that the estate does 
 not exceed £100 in yearly value, and the interlocutor should 
 contain a finding to that effect. 
 
 Act of Sederunt, 14th January, 1881. 
 
 (3) Special Powers. 
 
 1334. An application for special powers is made, in the first 
 instance, to the Accountant of Court, whose report is presented 
 to the Court, along with a note by the factor, setting forth the 
 special powers craved, and the circumstances in which they are 
 necessary. The procedure is summary, and in the discretion
 
 584 STATUTORY POWEES AND DUTIES. 
 
 of the Sheriff, and, subject to appeal from the Sheriff-Substitute 
 to the Sheriff, the decision in the Sheriff Court is final. 
 
 43 & 44 Vict. c. 4, s. 4 (5). Act of Sederunt, 14th January, 
 
 1881, s. 9. 
 
 (4) Recall of Appointment. 
 
 1335. " Any person interested " may apply for the recall 
 
 of the appointment of a factor. A person interested is not 
 
 defined, but obviously includes a pupil who has come of age, 
 
 or an insane person who thinks he has recovered his reason. 
 
 The application may be made either in the Sheriff Court or the 
 
 Court of Session. If made in the Sheriff Court, it is a step in 
 
 the original process, and is made by note setting forth the 
 
 interest of the applicant, and the circumstances in which recall 
 
 is craved. If made in the Sheriff Court, the decision there 
 
 is final. 
 
 43 & 44 Vict. c. 4, s. 4 (9). Act of Sederunt, 14th January, 
 
 1881, b. 1. 
 
 (5) Discharge of Factor. 
 
 1336. The factor's application for discharge is made by 
 note lodged in the original process. Intimation is made in the 
 same manner as in an application for an appointment of factor, 
 and a remit is made to the Accountant of Court, who makes a 
 report to the Court. If the report is satisfactory, the Sheriff 
 will discharge the factor. 
 
 Act of Sederunt, 14th January, 1881, s. 10. 
 
 20. Lands Clauses Act. 
 (1) Capital Certificate. 
 
 1337. Under the Lands Clauses Act of 1845, or other statutes 
 into which it is incorporated, when an undertaking is to be 
 carried into effect by subscribed capital, the fact that the pre- 
 scribed sum has been subscribed is certified by the Sheriff of 
 the district where the promoters carry on business, and where 
 the share register is kept. This is an administrative duty, 
 for which no formal application is necessary. Upon " such 
 " evidence as the Sheriff thinks proper and sufficient," he may 
 grant the certificate. In practice, the certificate is engrossed 
 in the promoters' share register, and signed by the Sheriff. 
 
 8 & 9 Vict. c. 19, s. 15, 16.
 
 LANDS CLAUSES ACT. 585 
 
 (2) Assessment of Compensation. 
 
 1338. When lands are taken compulsorily under the powers 
 of the Lands Clauses Act, the ordinary method of assessing the 
 compensation is by arbitration. But an exception is made in 
 the case of a claim of less than £50, which may be determined 
 by the Sheriff. Arbitration is competent for small claims also 
 if both parties agree, but, if not, either party may make an 
 application in the Sheriff Court of the district where the lands 
 are situated. This is a summary application which may be 
 disposed of by the Sheriff: or the Sheriff-Substitute. The 
 decision of either is final. The initial writ should describe the 
 lands, and crave the Sheriff to assess the amount of compensa- 
 tion. The first deliverance is an order for service, and fixing a 
 diet. At that diet the Sheriff may proceed in the absence of 
 either party. No written pleadings, or record of evidence, is 
 necessary. The proceedings are summary, but the Sheriff 
 must give his decision in writing. 
 8 & 9 Vict. c. 19, s. 21, 22. 
 
 1339. Another alternative to arbitration is the assessment 
 of compensation by a jury. If the claim exceeds £50, the 
 claimant may require it to be assessed by a jury. This mode 
 may also be adopted if a claimant fails to duly notify his 
 claim and demand arbitration; or if an arbitration having 
 been entered upon the arbiter or oversman fail for three months 
 to make an award, a summary application may be presented 
 craving the Sheriff to summon a jury to determine the amount 
 of compensation. The jury consists of thirteen persons, drawn 
 from a panel of twenty-five summoned by the Sheriff, or upon 
 the request of either party the Sheriff may summon a special 
 jury. The proceedings are conducted in the manner of a 
 criminal jury trial. The Sheriff presides, and, if either party 
 so request, the Sheriff may order the jury or any seven of 
 them to inspect the locus. The amount assessed by the 
 jury is decerned for by the Sheriff, and his decision is not 
 subject to review. The costs of the trial are borne by the 
 promoters unless (a) the claimant fails to appear; or (b) the 
 jury award the same or a less sum than the promoters had 
 offered, in which case the promoters' liability for costs is 
 restricted to one-half. 
 
 8 & 9 Vict. c. 19, s. 35-55.
 
 586 STATUTORY POWERS AND DITTIES. 
 
 (3) Absent Owner. 
 
 1340. When an owner of lands compulsorily taken is 
 outwith the United Kingdom, or cannot be found by the 
 promoters, they may apply to the Sheriff to nominate a 
 valuator to determine the amount of compensation. This is 
 an ex parte summary application. The initial wrrl should 
 describe the lands, and briefly narrate the efforts made to 
 trace the owner, and crave the Court to nominate a valuator. 
 The valuator, when nominated, appears before the Sheriff, 
 and makes oath that he will faithfully, impartially, and 
 honestly execute the office. The promoters are bound to 
 preserve the nomination and valuation, and to produce them 
 to the owner, and all other parties, if afterwards called upon. 
 
 8 & 9 Vict. c. 19, s. 56-60. 
 
 21. Land Drainage. 
 
 (1) Jurisdiction. 
 
 1341. The aid of the Land Drainage (Scotland) Act of 
 1847 is invoked when a land owner is desirous of draining his 
 lands, but is prevented doing so by the objections, absence, 
 or disability, of neighbouring proprietors. Such a proprietor 
 may apply for authority to execute his drainage works in 
 the Sheriff Court of the district within which lie the lands 
 proposed to be drained, or in the Sheriff Court of the district 
 within which lie the contiguous lands. 
 
 (2) Procedure. 
 
 1342. Before this application is competent, the requisite 
 notices must have been given under the Lands Clauses Act. 
 The proceedings are not directed to be summary, and the appro- 
 priate procedure seems to be by ordinary action at the instance 
 of the party desiring to drain, calling as defenders all the 
 proprietors whose interests may be affected by the execution 
 of the proposed drainage works. The initial writ should set 
 forth what is proposed to be done. The pursuer is required 
 to produce a plan showing how the lands of the defenders 
 are to be affected. The crave is (1) for declarator (a) that 
 the benefit to be derived from the drainage improvement 
 proposed outweighs the damage to be done thereby; (&) that
 
 LAND DRAINAGE. 
 
 the proposed method is in the circumstances the best; (c) that 
 the drainage improvement can be effected without material 
 detriment to the lands or rights proposed to be interfered 
 with; (d) that any damage done can be adequately compen- 
 sated under the provisions of the Act; and accordingly (2) 
 for warrant to execute the work subject to the defenders' 
 compensation rights, as the same may be ascertained in any 
 competent process. The pursuer bears the costs of the 
 proceedings, unless the Sheriff is of opinion that any objection 
 is frivolous or vexatious, in which event the objector may be 
 held liable in expenses. The Sheriff may require caution 
 to be found for expenses. 
 10 & 11 Vict. c. 113, s. 3-7. 
 
 (3) Maintenance of Works. 
 
 1343. After such works have been executed, the cost of 
 repair and maintenance is a charge upon all the proprietors 
 taking benefit from the works. Any person interested may 
 apply in the Sheriff Court for authority from time to time to 
 perform such operations as maybe necessary for maintaining, 
 repairing, and upholding the drainage works. The other 
 proprietors interested will be called as defenders. The initial 
 writ should set forth the necessity for repair work, state 
 shortly the nature of it, and crave authority to the pursuer 
 or other person to be named by the Court to execute the work. 
 The writ should also crave for allocation of the cost when 
 ascertained, and for decree against each proprietor for his 
 proportionate share. 
 
 10 & 11 Vict, c. 113, s. 14. 
 
 22. Local Government. 
 
 (1) Adjustment of Count)/ and Burgh Interests. 
 
 1344. An important civil duty devolving upon tlio Sheriff 
 under the Local Government Act, 1889, which is discharged 
 by the Sheriff [not the Sheriff-Substitute] arises when a 
 portion of territory within the area of a County Council's 
 jurisdiction is formed into a burgh, or burgh boundaries are 
 extended to include that area. The Town Council of the 
 burgh becomes the local authority " subject to adjustment by 
 " the Sheriff in regard to the property and debts and liabilities
 
 588 STATUTORY POWERS AND DUTIES. 
 
 " affected by such change." There are no process directions 
 in the statute, so that the appropriate process appears to be 
 a summary application at the instance of the County Council 
 or the Town Council, narrating the circumstances, and craving 
 the Court to define the respective interests and liabilities of 
 the county and the burgh. This application must be made 
 within a year of the formation of a burgh, or the extension 
 of boundaries. 
 
 52 & 53 Vict. c. 50, s. 99. 3 Ed. VII. c. 33, s. 96. 
 
 (2) Aj)j?eal. 
 
 1345. The Local Government Act of 1908 empowers a 
 
 County Council to adopt certain provisions of the Burgh 
 
 Police Acts relating to forming streets, numbering streets and 
 
 houses, altering building lines when property comes to be 
 
 reconstructed, dealing with ruinous or dangerous buildings, 
 
 &c. Against a resolution of the County Council to adopt 
 
 these provisions any person aggrieved has a right of appeal, 
 
 in the same manner as under the Burgh Police Acts, 1892- 
 
 1903. Appeal is competent against a resolution of a Town 
 
 Council — that is to say, appeal to the Sheriff by way of a 
 
 summary application, and from him, by way of a stated case, 
 
 to the Court of Session. 
 
 55 & 56 Vict. c. 55, s. 144-148, 3 Ed. VII. c. 33, s. 10-11-12, 104. 
 
 158, 191-200-339. 8 Ed. VII. c. 62, s. 11 (2) (6). 
 
 (3) Piers and Ferries. 
 
 1346. The Local Government Acts have transferred to 
 County Councils the duty of regulating piers and ferries within 
 their area. The County Council is empowered to levy rates. 
 Against the resolution or acts of a County Council in carrying 
 out these statutory powers there is an appeal to the Sheriff, 
 and to the Court of Session in like manner. 
 
 52 & 53 Vict. c. 50, s. 16. 8 Ed. VII. c. 62, s. 11 (6). 
 
 (4) Fire Engines. 
 
 1347. A County Council may acquire fire engines and 
 appliances for themselves, or they may arrange for the use of 
 those belonging to burghs. In the case of a fire occurring 
 beyond the County Council's area, they may permit the fire
 
 LOCAL GOVERNMENT. r,s!) 
 
 engine and appliances which they own, or have the control of, 
 to be used. In that event, the owners or occupiers of the 
 buildings where the fire occurs become liable to pay a reason- 
 able charge for the use of the engine and appliances. A 
 difference of opinion as to what is a reasonable charge is 
 directed to be " determined summarily by the Sheriff, whose 
 " decision shall be final." The County Council is bound to 
 supply the party from whom payment is claimed with a state- 
 ment of account, and this, certified by the firemaster, and 
 approved by the County Council, is prima facie evidence. 
 8 Ed. VII. c. 62, s. 8. 
 
 (5) Cost of County Buildings. 
 
 1348. The Local Government Act of 1908 empowers a 
 County Council, with consent of the Secretary for Scotland, to 
 construct or alter buildings, including county buildings, con- 
 stables' dwelling-houses, &c. If other bodies have the use of 
 these buildings, the cost is allocated by the County Council. 
 If dissatisfied with the allocation, any interested body may 
 appeal to the Sheriff, whose decision is final. In this matter 
 the jurisdiction of the Sheriff-Substitute is expressly excluded. 
 
 8 Ed. VII. c. 62, s. 3 (1) (6). 
 
 23. Lunacy. 
 
 (1) Cognition oj Insane Person. 
 
 1349. It is not competent in a Sheriff Court process to 
 declare insanity. Formerly a brieve from Chancery, for the 
 cognition of a person alleged to be insane, was directed to the 
 Judge Ordinary, but the Court of Session Act of 1868 made 
 this incompetent by directing that a brieve from Chancery 
 ehould be directed to the Lord President of the Court of Session, 
 and the procedure takes place in the Court of Session, by way 
 of jury trial. But the Sheriff has important duties in the 
 administration of the lunacy statutes, under which Sheriff 
 includes Sheriff-Substitute. 
 
 31 & 32 Vict. c. 100, s. 101. 
 
 (2) Inspection of Asylums. 
 
 1350. The Sheriff may visit any public or private place 
 within his jurisdiction where a lunatic is detained under
 
 590 STATUTORY POWERS AM) DUTIES. 
 
 warrant of the Sheriff. He may visit and inspect such places 
 ;,t any time, either alone, or along- with a medical man, and 
 he may institute inquiry into the management of the place, or 
 the conduct of (he officials. If he has anything to say about 
 the management, he makes an entry in the patient book, which 
 brino-s the matter under the notice of the Prison Commissioners. 
 20 & 21 Vict. c. 71, s. 25. 
 
 (3) Committal of Lunatic 
 
 L351. No person can be confined as a lunatic, except after 
 formal procedure. The superintendent of an asylum may 
 receive and detain a person for three days, if his insanity is 
 certified by one medical man. But this emergency certificate 
 is of no force or effect after the expiry of the three days, and 
 for longer detention a Sheriff's warrant is required. To obtain 
 this, a summary application is made in the Sheriff Court of 
 the district where (a) the lunatic is resident; or (b) the lunatic 
 is found; or (c) the place of proposed detention is situated. 
 Any person who, for the time being, has the custody of the 
 insane person, may make this application. In general, the 
 applicant is a relative. In the case of paupers, the inspector of 
 poor is the applicant, and in the case of criminals the 
 procurator-fiscal. The crave of the application is to authorise 
 the superintendent of the asylum to receive the patient. The 
 initial writ in such an application may, like any other, be 
 Bigned by the pursuer's law agent, but, as it must be accom- 
 panied by a statutory schedule of particulars, and the filling 
 up of this schedule, and the making a crave for the detention 
 of a person as insane, are matters of grave responsibility, it is 
 always desirable, and it is the general practice, to have the 
 initial writ signed by the pursuer personally. 
 
 20 & 21 Vict. c. 71, Sch. C. 25 & 26 Vict. c. 54. s. 14. 
 
 L352. Before a warrant is granted there must be produced 
 to the Sheriff certificates, dated within fourteen days prior to 
 the date of the application, granted by two duly registered 
 medical men. The Sheriff has no responsibility as regards the 
 person signing the certificate, beyond satisfying himself that 
 he is on the medical register. Nor has the Sheriff any discretion 
 to refuse effect to the medical certificates, if they conform to 
 the statutory directions. The medical certificates are required
 
 LUNACY. 591 
 
 to state ilif facts upon which the opinion is based thai the 
 person certified is insane, and to state these facts under two 
 lie, ids (a) facts indicating insanity observed by the medical 
 man himself; (6) facts fit' any) communicated by others. But, 
 if the medical man sets forth in bis certificate that, in his 
 opinion, tlie person is insane, the Sheriff cannot entertain any 
 objection to the certificates upon the ground that the facts 
 set forth do not warrant the opinions expressed. Nor does 
 the Sheriff himself offer any opinion, or make any finding-, 
 that the person is insane. He proceeds entirely upon the 
 medical certificates. The Sheriff's interlocutor does not set 
 forth facts found by him. It merely records the fact that the 
 insanity has been certified in statutory form, and, because it 
 has been so certified, not because the Sheriff himself has any 
 opinion one way or other, a warrant is granted authorising the 
 transmission of the insane person to a named asylum. 
 
 21 & 22 Vict. c. 90, s. 34. 25 & 26 Vict. c. 54. s. 14. 
 
 (4) Dangerous Lunatic. 
 
 1353. In some circumstances the Sheriff has power to 
 commit a lunatic without an application being made by a 
 relative or other private person. When a lunatic (a) has been 
 apprehended charged with an offence dangerous to the liegi 
 (b) is found in a state threatening danger to the lieges, or in 
 a state offensive to public decency, the Sheriff of the district 
 where the lunatic is found, on the application of the local 
 procurator-fiscal, or the inspector of poor, and on production 
 of a medical certificate bearing that the person is in a state 
 threatening danger, or offensive to public decency, may in the 
 first place commit the person to a place of safe custody. There- 
 after the Sheriff gives public notice, by newspaper advertise- 
 ment, that, at a named time and place, inquiry will be made 
 into the condition of the lunatic. Special notice is given to 
 the inspector of poor of the locality where the lunatic was found 
 (unless the application for committal has been made by that 
 inspector). Within tw r enty-four hours the inspector may make 
 arrangements for the custody of the lunatic. If he does not do 
 so, the inquiry proceeds before the Sheriff. The proceedings 
 are summary, and the evidence need not necessarily be 
 recorded. The Sheriff, upon being satisfied (a) that the person 
 is a lunatic, and (b) that he is in ;i Btate threatening danger to 
 the lieges or offensive to public decency, " shall commit the
 
 592 STATUTORY POWERS AND DUTIES. 
 
 " lunatic to any asylum," to be detained " until cured, or 
 " until caution shall be found for his safe custody." Before 
 authorising 1 the release of the lunatic, the Sheriff must be 
 satisfied not only of the material sufficiency of the cautioner, 
 but also of " the safety and propriety of such custody," and see 
 certificates from two medical men, approved by the procurator- 
 fiscal, to the effect that the lunatic may be discharged without 
 risk of injury to himself or to the public. 
 
 25 & 26 Vict. c. 54, s. 15. 29 & 30 Vict. c. 51, s. 19. 
 
 (5) Exyen&es. 
 
 1354. In ordinary circumstances no order for expenses is 
 made in lunacy applications, but in the case of a dangerous 
 lunatic, whose condition is inquired into by the Sheriff, a 
 decree for expenses may be granted in favour of the procurator- 
 fiscal, or the person at whose instance the proceedings are 
 taken, against the parish within which the lunatic is appre- 
 hended or found at large. If the Sheriff commits the person, 
 he may also grant decree against the parish in favour of the 
 superintendent of the asylum, for a sum sufficient to maintain 
 the lunatic. Such a decree is final, but the parish has a right 
 of relief against any other parish, or against relatives who may 
 be legally liable to maintain the lunatic. 
 
 25 & 26 Vict. c. 54, s. 15. 34 & 35 Vict. c. 55, s. 8. 
 
 (6) Criminal Lunatic. 
 
 1355. When any person confined in a local prison becomes 
 insane, the Sheriff has power to order the removal of the person 
 to an asylum. The summary application for a warrant is 
 made by the prison authorities, in the Sheriff Court within 
 whose jurisdiction the prison is situated. The application must 
 be accompanied by two medical certificates, as in the case of 
 an application by a relative or custodier, and the procedure is 
 similar. If satisfied that the medical certificates are in order, 
 the Sheriff may grant warrant for removal of the prisoner to 
 any asylum. The same Sheriff may grant warrant for the 
 prisoner's re-conveyance to prison, if he recover his reason 
 before his term of sentence has expired. Warrants granted 
 under this statute may be put in force anywhere within 
 Scotland. 
 
 34 & 35 Vict. c. 55, s. 6, 7.
 
 LUNACY. 
 
 (7) Discharge of Lunatic. 
 
 1350. It is a curious anomaly of lunacy procedure in 
 Scotland that, although, for committal, a Sheriff's warrant is 
 necessary, there is not necessarily (except in the rase of a 
 dangerous lunatic) judicial procedure at all in regard to the 
 discharge of a lunatic. No application to the Courl is neces- 
 sary, ami the two medical certificates which are required for 
 the committal of a lunatic are not required for his discharge. 
 All that seems to be required is a certificate by the superin- 
 tendent, or by the ordinary medical attendant, of the place 
 where the lunatic is confined, to the effect that the lunatic has 
 so far recovered that he may be safely liberated without risk 
 to himself or to the public. A copy of this certificate is sent 
 by the superintendent to («) the person at whose instance the 
 lunatic is detained; or (b) the nearest known relative; or (c) the 
 person or parish defraying the cost of the lunatic's maintenance. 
 If within fourteen days no steps are taken for his removal, 
 the superintendent reports the matter to the Prison Board, 
 who may direct inquiry into the circumstances. The Board 
 may order the lunatic to be discharged. 
 25 & 26 Vict. c. 54, s. 17. 
 
 (8) Escaped Lunatic 
 
 1357. The Lunacy Act of 1890, although in other respects 
 it is not applicable to Scotland, invests the Sheriff with 
 authority to grant warrant for the restoration of an escaped 
 lunatic found in Scotland. A justice having jurisdiction in 
 the place in England or Ireland whence the lunatic had escaped 
 may grant a warrant for his being brought back. This warrant 
 is prima facie evidence that the person named in it is an 
 escaped lunatic; and is authority to the Sheriff within whose 
 jurisdiction the lunatic is found to countersign it. Upon this 
 warrant the lunatic may be taken back to the custody from 
 which he has escaped. In like manner a lunatic who has 
 escaped from Scotland into England or Ireland may be brought 
 back upon the warrant of the Sheriff having jurisdiction in the 
 place whence he escaped, countersigned by a justice in England 
 or Ireland, having jurisdiction in the place where the lunatic 
 is found. 
 
 53 & 54 Vict. c. 5, s. 85-89. 
 38
 
 594 STATUTORY POWERS AM) DUTIES. 
 
 24. Maritime. 
 (1) Seamen's Wages. 
 
 1358. A claim for wages by a seaman is, like any other 
 claim for wages, a money claim, which may be sued for in an 
 appropriate Court of law. When the owners of a ship are 
 resident, or carry on business, at the port of discharge, procedure 
 in common form by Small Debt action or summary cause may 
 probably be found to be as convenient and as expeditious as 
 resorting to the special provisions of the Merchant Shipping 
 Act, 1894. But where a seaman is discharged at a port within 
 20 miles of which neither the owner nor the master is, or 
 resides, and the wages claim does not exceed £50, the seaman 
 may recover wages by summary proceedings in the Sheriff 
 Court of the jurisdiction where his service terminated. 
 
 57 & 58 Vict. c. 60, s. 164-165, 412. 
 
 1359. The same remedies as are open to a seaman for the 
 recovery of wages apply also to a shipmaster, or a person acting 
 as master in consequence of the decease or incapacity by illness 
 of the master, for recovery of wages or disbursements, or 
 liabilities properly made or incurred by him on account of the 
 ship. In such an action all questions of accounting between 
 the master and owners may be entertained, and decree may 
 be granted against either party for any balance arising upou 
 an accounting. A master has the further privilege of recover- 
 ing damages in addition to wages, if payment has been 
 unreasonably delayed. 
 
 57 & 58 Vict, c. 60, s. 167. 6 Ed. VII. c. 48, s. 57. 
 
 (2) Contracts. 
 
 13G0. The Court has power in any action between a master, 
 or seaman, or apprentice, and the owners of the ship, arising 
 out of their relationship, to rescind any contract of service. 
 Such a contract may be declared at an end. 
 57 & 58 Vict. c. 60, s. 168. 
 
 (3) Passage Broker. 
 
 1361. In Scotland the Sheriff is the licensing authority for 
 granting licences to passage brokers, under the Merchant 
 Shipping Act, 1894. This is an administrative duty, not a
 
 MARITIME. 
 
 Court process. This duty rests with the Sheriff of the <li 
 where the broker carries on business. Before a licence is 
 granted, the Sheriff musl be satisfied (a) thai due notice has 
 been given to the Board of Trade of the applicant's intention to 
 apply for a licence; and (b) thai the statutory bond oi caution 
 has been executed. When a licence has been granted, the 
 Sheriff is required t<> notify the Board of Trade. A pa- 
 broker's licence subsists till 31st December in the year in 
 which it is granted, and for thirty-one days thereafter. 
 57 & 58 Yict. c. 60, s. 341, 342. 
 
 (4) Emigrant Runner. 
 
 1362. The Sheriff is also the licensing authority for granting 
 licences to emigrant runners. The application is made in the 
 Sheriff Court of the district where the runner proposes to carry 
 on business, and must be accompanied by a written recom- 
 mendation from an emigration officer, or from the chief police 
 officer of the district. This licence, when granted, is intimated 
 to, and registered by, the nearest emigration officer, to whom 
 also notice must be given of any change of address. 
 
 57 & 58 Yict. c. 60, s. 348-352. 
 
 (5) Salvage. 
 
 1363. The Merchant Shipping Act of 1894 recognised the 
 jurisdiction of the Sheriff Court which previously existed to 
 entertain a salvage claim, but restricted the jurisdiction to 
 cases where (a) irrespective of value, parties consent to try the 
 case in the Sheriff Court ; or (b) the value of the property saved 
 does not exceed £1000; or (V) the amount claimed does not 
 exceed £300. A salvage claim, like any other money claim, 
 is subject to the provision of the Sheriff Courts Acts, that the 
 Sheriff Court has privative jurisdiction up to the value of +'-30. 
 Beyond that figure, any salvage claim may be brought in the 
 Court of Session, but the Merchant Shipping Act of 1894 makes 
 this serious qualification that, if the claimant does not there 
 get decree for more than £300, he does not get costs, unless 
 the Court of Session certifies that the case was a fit one to 
 be tried otherwise than summarily in the manner provided by 
 the Merchant Shipping Act, that is to say, that the action was 
 not suitable to be tried in the Sheriff Court; for, as regards 
 Scotland, the statutory direction of the 1894 Act, that a salvage
 
 STATUTORY POWERS AND DUTIES. 
 
 claim under £300 may be "determined summarily," means 
 that " it shall be referred to and determined by the Sheriff 
 •• Court,' 5 and that direction (notwithstanding that section 703 
 seems to contemplate summary procedure) has been interpreted 
 as meaning that the action in the Sheriff Court is not a sum- 
 mary application, 1ml an ordinary action (or if the claim does 
 not exceed £50, <ir of consent, a summary cause). It is difficult 
 to conceive of any Balvage claim which could be certified as 
 unfit to be tried in the Sheriff Court, so that in practically 
 every action brought in the Court of Session the pursuer runs 
 a serious risk of not recovering costs if the award does not 
 exceed £'100. What, in Scotland, therefore appears to be 
 competent is (a) if the claim does not exceed £20, to sue for it 
 in the Small Debt Court ; (b) if it does not exceed £50, to sue 
 for it as a summary cause in the Sheriff Court; (c) if it is laid 
 at a sum over £50, but not exceeding £300, to sue for it as 
 an ordinary action in the Sheriff Court; (d) if it is laid at a sum 
 exceeding £300, to sue for it in the Sheriff Court if the value 
 of the property sued does not exceed £1000, or if parties 
 consent; and (e) if the claim is laid at over £300, and the 
 property saved exceeds £1000 in value (and parties do not 
 consent to proceed in the Sheriff Court), to sue for it in the 
 Court of Session, subject to the qualification before referred 
 to of possible loss of costs, if the Court of Session do not award 
 more than £300. 
 
 Appendix, s. 3 (i), 7. Sinclair v. Spence, 1883, 10 R. 
 
 57 & 58 Vict. c. 60, s. 547, 702- 1077. 
 
 710 United Creameries Company v. 
 
 Davidson v. Jenkins, 1844, 6 D. Boyd & Co., 1912, S.C. 617. 
 
 765 Thirtle v. Copin, 1912, 29 S.C.R. 
 
 13. 
 
 13(54. A salvage action brought in the Sheriff Court has 
 certain statutory privileges, which do not apply to actions 
 generally. These privileges include (1) that the action may 
 be brought not only in the Court to whose jurisdiction the 
 defender is ordinarily subject; but also in any Sheriff Court 
 which exercises jurisdiction (a) at or near the place where the 
 salved vessel lies, or where a wreck is found ; or (6) at or near 
 the port inlo which the vessel is first brought after the occur- 
 rence out of which the salvage claim arises; (2) that the Court 
 may " call in to their assistance any person conversant with 
 " maritime affairs as assessor." 
 57 & 58 Yict. c. 60, s. 548.
 
 MARITIME. 597 
 
 (6) Apportionment of Salvage. 
 
 1365. An action is not always necessary tor declaring 
 liability for salvage ; but an ascertained or agreed upon amount 
 may require to be apportioned amongst the parties who con- 
 tributed to the salvage service, us tor instance, ;i- amongst tbe 
 master, officers, and crew of the salving vessel, or as between 
 the owners of the salving- vessel and her officers and crew; or 
 as between two or more vessels taking part in the salvage 
 operation. The Sheriff Court, as a Court of Admiralty juris- 
 diction in Scotland, has jurisdiction to apportion salvage if the 
 amount exceeds £200. If it does not exceed £200, the appor- 
 tionment may be made by the Receiver of Wrecks. The £300 
 value qualification of the Merchant Shipping Act, 1894, does 
 not apply to apportionment. Whatever the amount, it may 
 be apportioned in the Sheriff Court. The directions of section 
 556 would be met in Scotland by a summary application, 
 craving the Court to apportion the amount; or to appoint a 
 person to do so; but, as an apportionment process is a distribu- 
 tive process only, the more convenient mode in the Sheriff 
 Court would appear to be for the holder of the fund, or any 
 claimant, to raise an action of multiplepoinding in the Sheriff 
 Court within whose jurisdiction the fund lies, or to which the 
 holder of the fund (i.e., the managing owner of the salved 
 vessel) is subject. 
 
 57 & 58 Vict. c. 60, s. 556. 
 
 (7) Evidence. 
 
 1366. In such actions there is a statutory relaxation of the 
 ordinary rule that the evidence of a witness must be taken 
 before the Court, or before a Commissioner nominated by the 
 Court. If a necessary witness cannot be found, but he has 
 previously made a deposition on oath before a British magis- 
 trate, or consular officer, the deposition may be used as evidence 
 in the cause, but such a deposition may be used as evidence 
 in the criminal Court only if it was made in the presence of 
 the person accused. 
 
 57 & 58 Vict. c. 44, s. 691-695. 
 
 (8) Citation. 
 
 1867. The ordinary rules as to citation are also qualified 
 by the statute. When citation is necessary in proceedings
 
 STATUTORY POWERS AM) DUTIES. 
 
 under the Merchanl Shipping Act, it may be made (a) person- 
 ally; (b) at the lasl place of abode of the person to be cited; 
 (r) upon the master of a ship, or, failing him, upon the person 
 on board appearing to be in command; or upon the managing 
 owner; or, failing either, by affixing a copy to the mast of the 
 ship. 
 
 57 & 50 Vict, c. 60. s. 696. 
 
 (9) Detention of Foreign Ship. 
 
 1368. When, in any part of the world, injury has been 
 caused to a ship, or any other kind of property, belonging to a 
 British subject, by any foreign ship, and subsequently that 
 ship is found in any port or river within his jurisdiction, the 
 Sheriff is empowered to detain the ship, till caution be found 
 for damages and costs in an action for reparation. This is an 
 ex parte summary application at the instance of the person 
 whose property has been injured. The initial writ should set 
 forth (a) the nature of the injury done to the complainer's 
 property; (b) that the injury was the result of misconduct or 
 want of skill on the part of the master or mariners of the foreign 
 ship. The crave will be for warrant to officers of Court, or 
 Customs officers, or other person to be named by the Court, to 
 arrest (and, if necessary, to dismantle) the ship, to remain till 
 the owner or master finds security to the satisfaction of the 
 Court. The cautioner then becomes the defender in an action 
 for reparation. This action follows the usual course of a Small 
 Debt action, summary cause, or ordinary action, according 
 to its value. 
 
 57 & 58 Vict. c. 60, s. 688. 
 
 (10) Sale of Goods. 
 
 13G9. To avoid detention of ships, the Merchant Shipping 
 Act provides that goods may be landed from a ship, and placed 
 in the custody of a warehouseman or wharfinger, and yet remain 
 subject to the shipowner's lien for freight and charges. But a 
 shipowner is not bound to wait longer than ninety days for 
 payment of his freight, and he may require the warehouseman 
 to realise the goods, or so much thereof as may be necessary to 
 pay the freight and charges after notice given in two local 
 newspapers, and notice sent by post to the owner of the goods, 
 if known. Under the statute, the warehouseman has probably
 
 MARITIME. 599 
 
 authority, after giving notice, to realise the goods at Ins own 
 hand. But, for the better protection of a purchaser, and to 
 avoid any po^ible question of title, if is the practice in Scotland 
 to obtain judicial authority so to sell. The proceedings take 
 the form of an ex j></r/c summary application, in the Sheriff 
 Court of the district where the goods lie. 
 57 & 58 Viet. c. 60, s. 494-498. 
 
 (11) Damage to Harbour. 
 
 1370. The owners of a vessel which does damage to harbour 
 works are. of course, at common law liable to the harbour 
 authorities in reparation, if the damage was caused by the 
 negligence of their servants. If the damage does not exceed 
 £50, the harbour authorities appear also, under the Harbours, 
 Docks, and Piers Clauses Act of 1847, to have a summary and 
 somewhat drastic remedy against the ship (which, for this 
 purpose, includes a float of timber). The harbour authorities 
 may detain the vessel till security is found for their claim, or 
 they may sue the master or owners in the Sheriff Court of the 
 district where the harbour is situated, craving the Court (a) to 
 find that the harbour works have been damaged through the 
 negligence of the master or others in charge of the vessel; (b) 
 to assess the damage; (c) to decern for payment thereof; (tl) in 
 the event of the same not beiug paid within seven days, to 
 grant warrant for the sale of the vessel; (e) to authorise the 
 harbour authorities, out of the free proceeds of sale, to retain 
 the amount assessed and expenses; (/") and to appoint them to 
 consign in Court any balance which may remain. 
 
 10 & 11 Vict. c. 27, s. 75. 
 
 (12) Pilotage Appeal. 
 
 1371. The pilotage provisions of the Merchant Shipping 
 Acts, 1894-190(5, have been superseded by the Pilotage Act. 
 1913. That statute gives a right of appeal in the Sheriff 
 Court, to a pilot — (a) if his licence has been suspended, or 
 revoked, by the pilotage authority; (b) if they refuse to renew 
 it; (c) if they have obtained possession of the licence, and 
 refuse to return it; {</) if they have lined the pilot a sum 
 exceeding £2. The pilot may present a summary application 
 in the Sheriff Court having jurisdiction at the port where the 
 decision of the pilotage authority is given, craving review of 
 the decision of the pilotage authority, and the Court may [a)
 
 COO STATUTOEY POWERS AND DUTIES. 
 
 confirm or reverse the suspension or revocation of the licence; 
 (b) make such order in the rase as may seem just. The Sheriff 
 CuuM judgment is final, unless leave is given to appeal to the 
 Court of Session " on a question of law or a question of mixed 
 " law and fact." The statute itself does not expressly say so, 
 hut what seems to be contemplated is appeal by stated case. If 
 not otherwise directed by Act of Sederunt, the procedure 
 follows the normal course of a summary application, under 
 the Sheriff Courts Acts, 1907-1913. 
 
 57 & 58 Vict. c. 60, s. 572-632. 2 & 3 Geo. V. c. 31, s. 23-28. 
 
 1372. The statute enacts that the Sheriff " shall sit with 
 " an assessor of nautical skill and pilotage experience selected 
 •'and summoned by the judge." It is contemplated, appar- 
 ently, that the Court will inform the parties of the assessor 
 proposed to be called in, for the statute provides that either 
 party may object to him "personally or in respect of his 
 "qualification." Such an appeal may probably be reasonably 
 termed an action arising out of a "maritime matter" within 
 the meaning of the Nautical Assessors Act of 1894, and the 
 relative Act of Sederunt of 8th December, 1894. 
 
 57 & 58 Vict. c. 40, s. 2. Act of Sederunt, 8th Dec, 1894. 
 
 2 & 3 Geo. V. c. 31, s. 28 (2) 
 (3) (7). 
 
 25. Moneylex dees' Claims. 
 
 1373. The Moneylenders Act of 1900 introduced into Sheriff 
 Court practice a new principle of obtaining judgment in regard 
 to a debt before that debt has become due. In the general case, 
 it is not competent to sue upon a debt until it has become due, 
 and then the form of action is an action for payment, in which 
 the debtor has his first opportunity of stating a defence against 
 payment. Inter alia, he may now plead in defence that charges 
 for interest, &c, are harsh and unconscionable. But it is 
 competent for a borrower to seek declarator that a loan 
 bargain Was harsh and unconscionable, notwithstanding that 
 no demand for payment has yet been made, and that the due 
 date of payment has not yet arrived. The application to the 
 Court will take the form of an action of declarator, and follow 
 the usual course of a process in the Ordinary Court. The 
 pursuer may be the " borrower or surety or other person liable,"
 
 MONEYLENDERS' CLAIMS. 601 
 
 and the action may be raised in any Couri in which an action 
 for payment of the loan would be competent. The initial writ 
 should set forth the nature of the transaction, and the particular 
 respect in which it is alleged to be a harsh and unconscionable 
 bargain. The crave will be for declarator thai the bargain 
 was harsh and unconscionable, and that the debt due by the 
 pursuer to the defender does not exceed a sum to he fixed by 
 the Court. If partial payment has been already made, it may 
 be necessary also to crave for a revision of accounts, and 
 possibly for decree for such sum as may appear to have been 
 paid in excess of what is a just debt. 
 63 & 64 Vict. c. 51, s. 1. 
 
 26. MuxicirAL. 
 
 (1) Creation of Burgh. 
 
 1374. Proceedings for erecting a populous place into a 
 burgh may be taken by any seven or more householders, by 
 presenting an application to the Sheriff of the county within 
 which the area proposed to be made a burgh is situated. This 
 matter is one of the exceptions to the general rule that Sheriff 
 includes Sheriff-Substitute. The Sheriff alone can act. The 
 application being a civil proceeding in the Sheriff Court, 
 authorised by statute, the directions of the Burgh Police Act 
 must be observed. Accordingly, the condescendence annexed 
 to the initial writ should describe the populous place, and crave 
 the Sheriff to find that the area proposed is suitable for being 
 formed into a police burgh, and to define the boundaries 
 thereof. Xotice is given by advertisement, and all parties 
 interested are entitled to be heard. The population is ascer- 
 tained by remit to a reporter. The boundaries having been 
 defined, a meeting of householders is convened by the Sheriff, 
 and, if necessary, a poll taken. If the resolution to adopt the 
 Act is carried, the Sheriff finds and declares that the populous 
 place is a burgh. 1 lis finding is recorded in the Court books, 
 and reported to the Secretary for Scotland. There is no appeal ; 
 but if any accidental error has occurred, the Sheriff has power 
 to rectify it. 
 
 55 & 56 Vict. c. 55, s. 4 (30), 9, 10. 
 
 (2) Revision of Boundaries. 
 1375. This duty also is relegated to the Sheriff, to the
 
 602 STATUTORY POWERS AM) DUTIES. 
 
 exclusion of the Sheriff-Substitute. Upon the application of a 
 
 Town Council, after notice by public advertisement, and after 
 
 bearing all parties interested, the Sheriff may alter the burgh 
 
 boundaries. Where the burgh is in one county, and lands 
 
 proposed to be included are in other counties, the Sheriffs of 
 
 all the counties concerned form the tribunal for disposing of 
 
 the application. The Court in which such an application is 
 
 made is thai of the county where the burgh is situated. The 
 
 Sheriff or Sheriffs may not sanction an alteration of boundaries, 
 
 merely because the application is not opposed. They must 
 
 inquire into the merits. It more than one Sheriff sits, and if 
 
 they are not unanimous, the application is refused. There is a 
 
 righf of appeal, by separate petition, to the Court of Session, 
 
 at the instance of the Town Council or a County Council, or any 
 
 owner or occupier. The Court of Session may either pronounce 
 
 a final order, or may remit to a Lord Ordinary to make or 
 
 direct an inquiry, and to determine the boundaries. If so, 
 
 his decision is final. When an application is refused, because 
 
 two or more Sheriffs do not agree, the Sheriffs may state a 
 
 case for the Court of Session. 
 
 55 & 56 Vict. c. 55, s. 4 (30), Lindsay v. Magistrates of Leith, 
 
 11-13. 1897, 24 R. 867. 
 
 63 & 64 Vict. c. 49, s. 114. 
 
 (3) Wards. 
 
 1376. As regards burghs other than those mentioned in 
 Schedule II. of the Burgh Police Act, 1892, the Sheriff (or the 
 Sheriff-Substitute), upon the application of a Town Council, 
 may re-divide the burgh into wards, to conform to boundary 
 alterations, or to give effect to a resolution of the Town Council 
 re-arranging wards. Advertisement and inquiry are in the 
 discretion of the Sheriff ; but it is compulsory that he shall hear 
 interested parties. If the application is dealt with by the 
 Sheriff-Substitute, there is appeal to the Sheriff. The decision 
 of the Sheriff is final. 
 
 63 & 64 Vict. c. 49, s. 17-19. 114. 
 
 (4j Acquisition of Land. 
 
 L'577. A Town Council under the Burgh Police Act, 1892, 
 has power, for certain purposes, to acquire land compulsorily 
 under the Lands Clauses Act, 1845. But, before that statute 
 can be put into operation, the sanction of the Sheriff must be
 
 MUNICIPAL. 603 
 
 obtained. To this end the Town Council may present a petition 
 (which under the Sheriff Courts Act, 1907, menus an initial 
 writ, and the appropriate form of writ appears to be a sumn 
 application), craving the authority of the Sheriff to put in force 
 the powers of the Lands Clauses Art. There must be produced 
 with the initial writ (a) a plan ; (6) a book of reference, showing 
 owners and occupiers. A time and place for inquiry is fixed, 
 and intimated to the owners and occupiers, and such other 
 intimation is made as the Sheriff may order. After inquiry, 
 and hearing' parties, the Sheriff may (//) grant the crave; (&) 
 grant it in a modified form; or (c) refuse it. The proceedings 
 are not competent before the Sheriff-Substitute, but only before 
 the Sheriff. There is no appeal to the Court of Session, but 
 there is what is called an appeal (but seems rather to be a 
 power to represent) to the Secretary for Scotland, who may, if 
 he think it desirable, order further inquiry. 
 
 Appendix, s. 3 (4) (p). 55 & 56 Vict. c. 55., s. 4 (30), 
 
 8 & 9 Vict. c. 19. 60. 
 
 (6) Councillors. 
 
 1378. The Town Councils Act, 1900, fixes the number of 
 councillors for a new burgh, proportionate to population. 
 Where the number in an existing burgh does not conform to 
 the 1900 Act, and it is deemed desirable to bring the number 
 of councillors into conformity with the 1900 scale, application 
 may be made to the Sheriff at the instance of the Town Council. 
 This application may be dealt with either by the Sheriff or the 
 Sheriff-Substitute. There is an appeal from the Sheriff- 
 Substitute to the Sheriff. The decision of the Sheriff 
 is final. The Sheriff may order any intimation, and 
 make such inquiry into the circumstances, as he may 
 deem necessary or expedient. The duty of the Sheriff 
 is to ascertain, and to declare (a) the population within 
 the municipal area; (b) the appropriate number of magistrates 
 and councillors; (c) the manner in which increase or decrease 
 in the number is to be given effect to; (d) the order in which 
 magistrates and councillors shall vacate office ; and generally 
 (e) any questions which arise in connection with the increase 
 or decrease in the number. It then becomes the duty of the 
 town-clerk to transmit to the Secretary for Scotland the 
 Sheriff's final judgment. 
 
 63 & 64 Vict. c. 49, s. 11, 114, Sch. II.
 
 604 STATUTORY POWERS AND DUTIES. 
 
 (6) Election Petition. 
 
 L379. The Town Councils Act, 1900, declares that a person 
 is disqualified for being elected, or for continuing, a councillor 
 (,/) if his name is not on the municipal register of electors; 
 (b) if being a councillor he is absent from the Council meetings 
 for six consecutive months without leave; (c) if he has been 
 adjudged bankrupl : (d) if he holds any office of profit in the 
 gift or disposal of the Town Council ; {e) if he has a direct or 
 indirect interest in any contract or employment with the Town 
 Council. Hut, if a person is in due form elected, the returning 
 officer luis no power to refuse to declare him elected. He must 
 return him, leaving the matter of his disqualification to be 
 afterwards determined in one or other of the ways prescribed 
 in the Act of 1900, read with the Elections (Scotland) Corrupt 
 and Illegal Practices Act, 1890. The Sheriff is the election 
 judge as regards the election of town councillors. 
 
 53 & 54 Vict. c. 55, s. 30-46. Thorn v. Aberdeen Magistrates, 
 
 63 & 64 Vict, c. 49, s. 13-47. 1885, 12 R. 706. 
 
 Birkbeck, 1874, L.R. 6 Q.B. Pritchard v. Bangor, 1887, 13 
 
 256. Ap. Ca. 241. 
 
 1380. The disqualification of a councillor may be declared 
 by the election court which, under the Elections (Scotland) 
 Corrupt and Illegal Practices Act of 1890, is the Sheriff Court 
 of the county within which the election took place. The 
 proceedings may be taken at the instance of (a) the Town 
 Council; (b) any four or more electors; [c] an opposing candi- 
 date if the disqualification existed at the time of nomination 
 or election. Seeing that a disqualification can be declared only 
 upon some specific statutory ground, the condescendence of the 
 initial writ should narrate the specific disqualification which 
 is founded on. The crave is for declarator that, in respect of 
 some specific stated disqualification, the defender is disqualified 
 as a town councillor. If action has been taken at the instance 
 of an opposing candidate, upon the ground that a disqualifica- 
 tion existed at the date of nomination, a further crave may be 
 made for declarator that the pursuer was duly elected. 
 
 53 & 54 Vict. c. 55, s. 31-45. Brown v. Scott Gibson, 1909, 26 
 
 Act of Sederunt, 8th November, S.C.R. 65. 
 
 1890. 
 
 1381. The procedure is in accordance with the directions
 
 MUNICIPAL. 605 
 
 of the Corrupl Practices Act of 1890, which contains detailed 
 process directions, in some respects different from the Sheriff 
 Court procedure rules. It is not competent for the Sheriff- 
 Substitute to decide upon an election petition; but certain 
 incidental procedure may be taken before him, including 
 receiving a late return of expenses: allowing amend- 
 ment ; fixing caution for expenses ; substituting a new pursuer 
 or a new defender. There is no appeal properly so-called to tin 1 
 Court of Session; but, upon the application of any party, the 
 Sheriff may remove the case to the Court of Session, by Btating 
 it in a special case. The Sheriff may also at the trial reserve 
 any question of law, and remit the same to the Court of Session 
 for decision. 
 
 53 & 54 Vict, c. 55, s. 25 (6), 63 & 64 Vict, c. 49, s. 14-114. 
 
 32, 33, 39, 40. Act of Sederunt, 8th Nov., 1890. 
 
 (7) Resolution of Town Council. 
 
 1382. The Town Councils Act of 1890 affords an alternative 
 mode of challenging the validity of the election of a councillor, 
 where it is the Town Council itself which is the challenger. 
 The Council may pass a resolution declaring- his office vacant, 
 upon the ground that he is disqualified. Notice must be given 
 to the councillor affected, and to the other councillors, at least 
 three days before the meeting at which the resolution is pro- 
 posed. If it is passed, any of the councillors may appeal 
 against it, in the manner allowed by section 339 of the Burgh 
 Police Act, 1892. 
 
 55 & 56 Vict. c. 55, s. 339. 63 & 64 Vict. c. 49, s. 14. 
 
 (8) Challenge of Accounts. 
 
 1383. The Town Councils Act, 1900, lays down as a general 
 principle that any elector, or ratepayer, may challenge in the 
 Sheriff Court any item in the accounts of a Town Council. But 
 certain Town Councils were empowered by resolution to declare 
 this provision inapplicable in the burgh administered by them. 
 If a Town Council has not so resolved, an action at the instance 
 of an elector or ratepayer may be raised in the Sheriff Court, 
 craving the Court to hear and determine the matter of the 
 complaint against the accuracy of the accounts condescended 
 on. The statute provides that the decision of the Sheriff 
 "shall be subject to the same right of appeal as in ordinal v
 
 606 STATUTORY POWERS AM) DUTIES. 
 
 "actions in the Sheriff Court." Accordingly, in the general 
 case, forma] pleadings will be desirable; and, if it is necessary, 
 proof will he taken and a record of the evidence will he kept; 
 and the Sheriff's interlocutor will make findings in fact and in 
 law. A complaint against accounts is incompetent after the 
 lapse of three months from the date of the meeting at which the 
 accounts were approved. 
 
 63 & C4 Vict o. 49, s. 96-109. Eadie v. Glasgow Corporation 
 
 (1907), 1908, S.C. 207. 
 
 (9) Bye-Law*. 
 
 1384. A Town Council has power to make rules for the 
 conduct of business and bye-laws for carrying out the provisions 
 of the Burgh Police Acts. Rules, orders, and regulations for 
 the conduct of business come into effect by resolution of the 
 Town Council; but bye-laws are not operative until they have 
 been confirmed by the Sheriff. What matters shall be dealt 
 with by rules, and what by bye-laws, is for the Town Council to 
 decide. It is not the function of the Sheriff to decide when 
 live-laws are appropriate. His sole duty is to consider them, 
 and, if he approves, to confirm them. Amongst many of 
 varying importance, perhaps the most important bye-laws are 
 those for sanitary purposes (which, in addition to being 
 approved by the Sheriff, must be approved by the Local Govern- 
 ment Board). But the statutes empower a Town Council to 
 make bye-laws for many other purposes. The only qualifica- 
 tion of their general powers is that the bye-laws must be (a) not 
 contrary to the common law; and (b) not inconsistent with the 
 statutes. Bye-laws must, besides being approved by the 
 Sheriff, be confirmed by the Secretary for Scotland. 
 
 55 & 56 Vict. c. 55, s. 55 (6). 316, 63 & 64 Vict. c. 49. s. 77. 
 
 318. 3 Ed. YII. c. 33, s. 82 (2). 
 
 1385. The application for approval of bye-laws is an ex parte 
 summary application, at the instance of the Town Council. 
 But, before the application is presented, it is the duty of the 
 Town Council (a) to advertise in the newspapers their intention 
 tn apply for confirmation of the bye-laws; (h) to exhibit at the 
 town-clerk's office for a month a copy of the proposed bye-laws; 
 (c) to print the proposed bye-laws; (<7) to furnish citizens who 
 request it with a copy; (e) to receive any objections sent to 
 them. The initial writ should narrate the advertisement, and
 
 MUNICIPAL. 
 
 refer to the bye-laws, and any objection 3tated, both of which 
 Bhould be produced with the initial writ. The crave i- 
 approval of the bye-laws. A diei for hearing musl be fixed, 
 any interested person is entitled to be heard, and it is within 
 the discretion of the Sheriff to take proof. The Sheriff's 
 judgment confirming, or refusing to confirm, the bye-laws ie the 
 final judicial pronouncemenl in the application. The Local 
 Government Board, or the Secretary for Scotland, however, 
 may not approve of bye-laws, although the Sheriff has con- 
 firmed them. The referring of bye-laws to official depart- 
 ments is independent of, and not by way of appeal against, the 
 deliverance of the Sheriff. 
 
 55 & 56 Vict. c. 55, s. 319-320. Rothesay Town Council. 1898, 
 
 14 S.C.R. 189. 
 
 1-380. A Town Council, as the local authority in a burgh, 
 enacts the necessary bye-laws for carrying out the Public 
 Health Acts. These are in like manner notified by advertise- 
 ment, but the appeal of any person aggrieved is not to the 
 Sheriff, but to the Local Government Board for Scotland. 
 Such bye-laws do not become operative till confirmed by the 
 Board. 
 
 60 & 61 Vict. c. 38, s. 185. 
 
 (10) Valuation for Assessment. 
 
 1387. Municipal assessments in general are levied upon 
 the valuation roll rental. But certain subjects are. by statutory 
 exception, held to be of the value of only one-fourth of the 
 valuation roll figure. These include such subjects as railway 
 and tramway lines, canals and towing- paths, bridges, ferries, 
 underground gas and water pipes, salmon fishings, nurseries, 
 market gardens, &C. If a question arises as to whether certain 
 subjects fall within the exception, it is competent for the owner 
 or occupier of the lands to apply to the Sheriff to settle the 
 dispute. The initial writ should narrate the nature of the 
 subjects, and the ground upon which it is contended that they 
 fall within the statutory exception. The crave is for declarator 
 thai the subjects are liable to assessment only upon one-fourth 
 of their value, as set forth in the valuation roll. 
 
 55 & 56 Vict. o. 55, s. 339, 347. 3 Ed. VII. c. 33. 3. 104 (a).
 
 608 STATUTORY POWERS AND DUTIES. 
 
 (11) Recovery of Rates. 
 
 1388. The Sheriff Court is the competent Court for recovery 
 of municipal assessments. A debtor may, of course, be sued 
 in common form for payment, by Small Debt action, or sum- 
 mary cause, or ordinary action, as the case may be. But, in 
 addition to this, there is a statutory summary process wliich 
 may be adopted, and generally is. The collector is required 
 to issue ;hi assessment notice, setting- forth the rates claimed, 
 and fixing- a time within which payment must be made. If 
 payment is not made within that time, the collector may apply 
 to the Sheriff for a summary warrant, for recovery of the 
 assessments in arrear, with 10 per cent, added. Any number 
 of persons in arrear may be included in the same application. 
 No service or intimation to individual ratepayers is required. 
 All that the Sheriff has to be satisfied of is that the statutory 
 notice had been given to each person, calling upon him to pay 
 the assessment. A certificate under the hand of the collector 
 is proof of this fact, and upon production of this certificate the 
 Sheriff may grant a warrant, which authorises execution of 
 arrestment in common form, and also authorises the collector 
 or any officer of Court " to enter into any premises in the 
 occupancy of any person so in arrear, and to poind, seize, 
 remove, or secure any goods and effects therein belonging to 
 or in the lawful possession of such person or persons, or so 
 much thereof as will fully satisfy the arrears due by him or 
 them, with the said addition of 10 per centum thereon." The 
 statutory form of warrant does not express, but it seems to 
 imply, warrant, if necessary, to open shut and lockfast places. 
 If there is doubt as to the competency of this as regards any 
 particular premises, the collector or officer should apply to the 
 Court for a supplementary warrant. 
 
 55 & 56 Vict. c. 55, s. 353, Sch. Govan Commissioners v. Clark, 
 
 VIII. 1889, 5 S.C.R. 156. 
 
 Scott v. Letham, 1844, 6 Bell's 
 A,,. Ca. 126. 
 
 1389. Possible oppressive proceedings by the collector are 
 provided against by the proprietor of goods poinded, or sold, 
 who feels aggrieved by any proceedings taken under this sum- 
 mary warrant, having a right of appeal to the Sheriff who 
 granted the warrant. The Sheriff " shall summarily call before
 
 MUNICIPAL. 609 
 
 "him the party complained of, and such petitioner, and uith- 
 " out written pleadings, shall inquire into and decide any 
 " dispute, question, or claim of damage raised by such petition, 
 " and may award expenses to either party." The decision of 
 the Sheriff who granted the warrant is final. The proceedings 
 under the statute are not subject to review, if they 
 conform to the statutory directions, but possibly, in a suspen- 
 sion, the question might be raised whether the assessment was 
 properly imposed, and whether the proceedings were within 
 the statute. 
 
 55 & 56 Vict. c. 55, s. 354. Watson v. Adams, 1849, 11 D. 
 
 Winter v. Magistrates of Edin- 1263. 
 
 burgh, 1837, 16 S. 276. Sharp v. Latheron Board, 1883, 
 
 10 R. 1163. 
 
 1390. If any persons included in the summary warrant 
 leave the jurisdiction where the warrant was granted, it is 
 necessary, before the warrant can be executed in another 
 sheriffdom, to have it endorsed by the Sheriff of the jurisdiction 
 where it is to be enforced. A summary warrant for recovery 
 of assessments may be executed by the collector, or an officer, 
 or a police constable. 
 
 55 & 56 Vict, c. 55, s. 357. 
 
 (12) Dangerous Buildings. 
 
 1391. A municipal authority has statutory power to safe- 
 guard the community against dangerous buildings. If any 
 building, or wall, or anything affixed thereon, is, in the 
 opinion of the burgh surveyor, unsafe, he may remove the 
 occupiers and temporarily shore up the structure. But the 
 authority of the Sheriff is required before the building can be 
 permanently interfered with. Notice must be first given to the 
 owner, or, if he cannot be found, to the occupier, and an 
 opportunity afforded of removing the danger. If the owner 
 fail to do so, the burgh surveyor may apply in the Sheriff 
 Court of the district where the property is situated for an 
 order upon the owner, within a specified time, to execute the 
 work set forth in the initial writ, or such other work as to the 
 Sheriff may appear necessary to put the property into a safe 
 condition. There should also be an alternative crave for 
 warrant to do the work at the owner's expense failing his 
 
 39
 
 610 STATUTORY POWERS AND DUTIES. 
 
 doing so, and in that event for decree for what may be ascer- 
 tained in the process to be the cost of executing the work. The 
 statute authorises the municipal authority, in the event of the 
 owner not complying with the Sheriff's order within the set 
 time, to do the work themselves, at the owner's expense, and 
 the cost of executing the work becomes a debt due to the 
 corporation, recoverable at law, or recoverable, under the 
 special machinery of the statute, out of the property itself, 
 which the corporation may take compulsorily under the Lands 
 Clauses Act, deducting the cost of the repair work from the 
 compensation. 
 
 55 & 56 Vict. c. 55, s. 191-194. 
 
 (13) Ruinous Property. 
 
 1392. When property in a burgh, held by two or more joint 
 owners, has become ruinous, owing to the proprietors being 
 unable to agree what should be done with it, the Court may 
 order the property to be restored, or to be sold in the Sheriff 
 Court of the district where the property is situated. The burgh 
 surveyor, or sanitary inspector, or one or more of the joint 
 proprietors, may take action. The statutory direction is " to 
 " call all parties interested therein before the Sheriff, in the 
 " usual manner and form " followed in his Court. The statute 
 does not direct that it is to be disposed of in a summary 
 manner. The appropriate form, therefore, seems to be an 
 ordinary action, calling as defenders all parties interested, 
 and craving (1) for declarator that the property is in a ruinous 
 condition ; (2) for a remit to three men of skill to value the 
 property, and apportion the valuation amongst the joint pro- 
 prietors according to their respective rights and interests ; (3) 
 to fix a time within which the owners may buy or sell their 
 interests to each other according to the valuation ; (4) failing 
 the owners so agreeing, to authorise the pursuer, or other 
 party nominated by the Court, to expose the property for sale 
 at an upset price not less than the appraised value, and, if 
 necessary, to reduce the upset price from time to time ; (5) to 
 appoint the proceeds of sale to be consigned in bank in terms 
 of section 196 of the Burgh Police Act, 1892 ; (6) upon such 
 deposit being so made, to find and declare that the purchase 
 has been duly completed, and to authorise immediate possession
 
 MUNICIPAL. 'ill 
 
 to be given to the purchaser ; and (7) to allocate the free pro- 
 ceeds amongst the joint proprietors, and authorise payment to 
 them out of the consigned fund. 
 
 1597, c. 36. 55 & 56 Vict. c. 55, s. 195-199. 
 
 Act 1644 c 35 Pollock v. Magistrates of Edin- 
 
 1663, c. 6. burgh, 23 D. 555, 24 D. 371. 
 
 1393. In such a process any person who can qualify an 
 interest may appear, although not called as a defender. If the 
 valuator's report does not disclose the interest of each pro- 
 prietor, the Sheriff may order claims and answers. An extract 
 of the decree declaring the purchase duly completed, when 
 registered in the appropriate Register of Sasines, is a valid title 
 to the purchaser. 
 
 55 & 56 Vict. c. 56, s. 197. Young's Trustees v. Grainger, 
 
 1904, 7 F. 232. 
 
 1394. If the ruinous subject is held by a single proprietor, 
 the procedure is less complicated. The owner is notified to 
 put the place into repair within three months. If the requisi- 
 tion is not complied with, application may be made to the 
 Sheriff for warrant of sale. The procedure as regards valuation, 
 exposure, and completion of the purchaser's title, is, mutatis 
 mutandis, the same as in the case of joint proprietors. 
 
 55 & 56 Vict. c. 56, s. 200. 
 
 (14) Dairymen. 
 
 1395. The Burgh Police Acts invest the local authority with 
 very extensive powers for preventing the supply of milk from 
 diseased cows. The medical officer may stop the supply from 
 any dairy, and the Town Council may make a closing order. 
 Against this there is a statutory right of appeal to the Sheriff 
 Court of the district in which the dairy is situated. The Sheriff 
 is directed to deal with the matter in a summary manner, and 
 he may make a separate order debarring the dairyman from 
 selling milk, or he may vary or rescind, or continue an order 
 already made by the local authority. 
 
 3 Ed. VII. c. 33, s. 88 (4). 
 
 1396. If the Sheriff finds that a dairyman is not himself in
 
 612 STATUTORY POWERS AND DUTIES. 
 
 default, and that an order lias been made without due cause, 
 or that the local authority unreasonably refuse to withdraw an 
 order, the dairyman has a claim for compensation against the 
 local authority, but this will form the subject of a separate 
 petitory action. The amount of compensation due is not deter- 
 mined in the statutory appeal against a closing order. In that 
 process the Sheriff's duty is exhausted by the declarator that 
 the order was made (or not withdrawn) unreasonably. Such 
 compensation is a claim which falls within the Public Authori- 
 ties Act of 1893, which requires proceedings to be instituted 
 within six months. 
 
 56 & 57 Vict. c. 61, s. 1 (a). 3 Ed. VII. c. 33, s. 89. 
 
 (15) Street Register. 
 
 1397. The Burgh Police Act of 1903 authorised a street 
 register to be prepared in every burgh, containing particulars 
 as to the situation, length, width, character, &c, of each street. 
 The register is to be accompanied by a plan showing the centre 
 line of each street. Public notice is given by the Town Council 
 of the completion of the register and plan, stating where these 
 may be seen, and notifying the public that there is a right of 
 appeal within three months to the Sheriff, or to the Court of 
 Session, and that, if not objected to within that time, the 
 register and plan will fix the particulars of the streets. Notice 
 is also sent by post to the owners of lands as appearing on the 
 valuation roll. 
 
 3 Ed. VII. c. 33, s. 5-6. 
 
 1398. Any person aggrieved by an entry in the register, 
 or a marking on the plan, may, within these three months, 
 challenge the register either in the Sheriff Court or the Court 
 of Session. As the statute contains no process directions, the 
 procedure is regulated by the Sheriff Courts Acts, 1907-1913. 
 The appeal to the Sheriff being a civil proceeding, and so an 
 action, the process will commence by initial writ, setting forth 
 the complaint made against the register, and craving its 
 correction. The term " initial writ " includes a note of appeal, 
 and in some Courts the practice is to receive a note of appeal. 
 In whatever form it is presented, it is a summary application 
 in the sense of the Sheriff Courts Acts, and the procedure is
 
 MUNICIPAL. 613 
 
 accordingly regulated by section 50 of the Acl of L907, subject 
 to the proviso of that section, which saves the right of appeal 
 
 to the Court of Session, which is allowed under section 7 of 
 the Burgh Police Act, 1903. 
 
 Appendix, b. 3 (<•/) (jfe) (;>), 50, 3 Ed. VII. c. 33, s. 7. 
 
 Rule 1, Form A. 7 Ed. VII. c. 51. s. 3 Ul) (/.•) 
 
 i». 50. 
 
 1399. If change of circumstances necessitates alteration 
 of the register, the burgh surveyor or " any other person having 
 "interest " may apply to the Town Council, or, if there is a 
 Dean of Guild Court in the burgh, to the Dean of Guild, to 
 have the register altered. After such intimation to parties 
 interested, and such advertisement as may seem necessary, the 
 Dean of Guild or the Town Council may authorise alteration 
 of the register. If the order is made by the Dean of Guild 
 Court the deliverance is "subject to the same appeal as is 
 " applicable to the ordinary judgments thereof " (that is, 
 appeal to the Court of Session). But if the order is made by 
 the Town Council, there is an appeal to the Sheriff, under the 
 same regulations as apply in the case of the original register. 
 
 3 Ed. VII. c. 33, s. 9. 
 
 1400. The existence of this statutory machinery for deter- 
 mining the width of streets does not preclude private parties 
 from seeking the aid of the Court to determine their rights. 
 It is competent, notwithstanding that a Town Council has 
 not exercised its statutory rights, for a person claiming right 
 to land, to bring an action of declarator to have his right in 
 the land determined, although the effect of a decision in such 
 an action might be to settle the limits of a street. This is an 
 ordinary action, subject to review in common form. 
 
 Craig v. Campbell et c con., 1911, S.C. 516. 
 
 (16) General Appeal. 
 
 1401. In addition to the special procedure in the matters 
 before referred to, the Burgh Police Acts give to aggrieved 
 persons a general right of appeal in very wide terms against 
 orders or resolutions of a Town Council. If not otherwise 
 specially provided for, such appeals are regulated by section 
 339 of the Burgh Police Act, 1892, and section 104 (s) of tho
 
 614 STATUTORY POWERS AND DUTIES. 
 
 Burgh Police Act, 1903. There is an optional appeal to the 
 Sheriff Court or the Court of Session. If taken in the Sheriff 
 Court, the initial writ is a summary application. The decision 
 of the Sheriff is final upon fact; but upon a question of law 
 there is appeal to the Court of Session, by stated case. 
 Challenge of jurisdiction is a question of law. 
 
 55 & 56 Vict. c. 55, s. 339. Allen & Sons Billposting, Ltd., 
 
 63 & 64 Vict. c. 49, s. 114. v. Edinburgh Corporation 
 
 3 Ed. VII. c. 33, s. 104 (s). (1908), 1909, S.C. 70. 
 
 Magistrates of Cumnock v. Mur- 
 doch, 1910, S.C. 748. 
 
 1402. The orders of municipal authorities against which 
 appeal to the Sheriff Court is competent are very varied, and 
 the appellants may include a person liable to pay or contribute 
 towards the expense of works, a person whose property is 
 affected, or a person who "thinks himself aggrieved" by any 
 order or resolution. The Sheriff is thus constituted the guardian 
 of the individual rights and privileges of every section of a 
 burghal community, for there are few, if any, owners or 
 occupiers of property within burghs who can hope to escape 
 claims for the cost of municipal works, and fewer still who 
 will not at times feel " aggrieved " by the action of the 
 municipal authorities. But the appeal allowed under these 
 statutes is a personal privilege to the party who is aggrieved, 
 and is not to be used to raise questions as to the general 
 policy of a local authority in discharging their statutory 
 duties. Unless a resolution, or order, complained of affects 
 a person's own interests, appeal is not competent ; and even 
 where a particular private interest is affected, and so the 
 appellant has a nominal title to challenge a resolution or 
 order, the Appeal Court will not, unless in very exceptional 
 circumstances, sustain any appeal which in effect asks the 
 Court to set aside an order relating to some practical matter 
 of administration which the statutes have entrusted to the local 
 authority, and to substitute for that a judgment of a Court. 
 The function of the Court is not to supplant local authorities 
 in the execution of the statutory duties entrusted to them, 
 but only, in the public interest, to safeguard interests of 
 private parties which may be affected by the orders or resolu- 
 tions of a public body. In other words, the object of such an 
 appeal is to prevent abuse of power, or excess of jurisdiction ; 
 not to settle differences of opinion between a local authority
 
 MUNICIPAL. G15 
 
 and an individual ratepayer, or a body of ratepayers, as to 
 matters of municipal policy. 
 
 Steel r. Gourock Commissioners, Mitchell v. Edinburgh Dean of 
 
 1872, 10 M. 954. Guild, 1885, 12 R. 844. 
 
 Small v. Dundee Commissioners, Freebairn v. Kilsyth Burgh, 
 
 1885, 12 R. 126. 1895, 11 S.C.R. 257. 
 
 140-!. An appeal to the Sheriff is directed to be taken within 
 
 fourteen days of the date of the notification of the order or 
 
 deliverance. But the appeal right covers matters where no 
 
 notification is necessary, and the effect of some resolutions 
 
 or orders is not always immediately apparent. Such directions 
 
 are liberally interpreted, and whilst the fourteen days' rule 
 
 might be rigidly regarded in cases relating to works the effect 
 
 of which is immediately evident, or to orders affecting specific 
 
 properties, and duly notified, in other cases the effect of works 
 
 are not immediately apparent, and a reasonable interpretation 
 
 would seem to be that an appeal is competent if it is taken 
 
 within fourteen days of the emergence of the grievance 
 
 complained of. 
 
 55 & 56 Vict c. 55, s. 339. Philips v. Dunoon Com- 
 
 Adam v. Alloa Commissioners, missioners, 1885, 12 R. 159. 
 
 1875, 2 R. 143. 
 
 1401. Appeals are taken in the Sheriff Court of the county 
 
 or district where the burgh is situated. The initial writ should 
 
 set forth the act, or recite the order, complained of, and crave 
 
 the Court to declare the same illegal, or unwarranted, and 
 
 to recall the order, or to otherwise deal with the matter of the 
 
 appeal. The Sheriff's powers of review are very ample, and 
 
 include the continuing, quashing, or varying of any order. 
 
 By leave of the Court, any interested party may appear, 
 
 although not called as a defender, and expenses may be 
 
 awarded against any party who appears. 
 
 55 & 56 Vict. c. 55, s. 339. Hamilton v. Perth Com- 
 
 missioners, 1898, 14 S.C.R. 
 325. 
 
 1405. The statutory appeal rights do not necessarily 
 exclude a common law remedy against a corporation whose 
 proceedings are ultra vires of their powers. Thus, although 
 it may not be competent to appeal against a particular order, 
 it may be competent to raise a civil process, as, for instance, 
 an interdict or declarator on the ground that the policy
 
 G16 STATUTORY POWERS AND DUTIES. 
 
 represented by the order is beyond the scope of statutory 
 powers. This is so, in particular, when the act or the resolu- 
 tion complained of is done, or passed, by the statutory body 
 acting in a judicial, or semi-judicial, capacity; but in general 
 when a statutory remedy has been provided, the Court will 
 not interfere, or countenance an action of declarator or interdict, 
 or other civil process at common law, which is designed to 
 get behind the statutory provisions. 
 
 Guthrie v. Miller, 1826, 5 S. 711. Hillhead Commissioners v. Ren- 
 Austin v. Lambeth, 1857, 27 wick, 1890, 17 R. 1042. 
 
 L.J Ch. 677. Caledonian Railway Company v. 
 
 M'Callum v. Barrie, 1878, 5 R. Glasgow Corporation (1905), 
 
 683. 1906, 8 F. 755. 
 
 (17) Actions against Public Bodies. 
 
 1406. The Public Authorities Protection Act of 1893 applies 
 to all actions against public bodies, in relation to any act done 
 by them in executing their statutory powers. Some of these 
 statutes themselves contain provisions as to bringing actions 
 at law. If so, these apply. If not, the general statute applies. 
 The protection which it affords is — (a) an action is competent 
 only if brought within six months of the cause of complaint 
 arising ; (b) if a pursuer brings an action without first affording 
 the public body an opportunity of remedying the grievance, 
 the defenders may get expenses as between agent and client ; 
 (c) if in an action of damages tender is made, and pursuer 
 ultimately gets less, the pursuer may be held liable in agent 
 and client expenses as from the date of tender; (cl) if, in any 
 action the defenders are successful, expenses may be directed 
 to be taxed as between agent and client. 
 
 56 & 57 Vict. c. 61. Aird v. Tarbet School Board 
 
 (1906) (per Lord President), 
 1907, S.C. 22. 
 
 27. Partnership. 
 
 (1) Jurisdiction. 
 
 1407. Under the Partnership Act of 1890, read along with 
 the Sheriff Courts Acts, 1907-1913, the Sheriff Court has now, 
 apparently, a concurrent jurisdiction to declare a partnership 
 at an end in certain circumstances. In the statute of 1890, 
 " the Court " was defined as including " every Court and judge
 
 PARTNERSHIP. 617 
 
 "having jurisdiction in the case." This definition then 
 excluded the Sheriff Court, because the decree craved in such 
 an action is declaratory, and an action of declarator could only 
 be entertained in the Court of Session. But such actions are 
 now competent in the Sheriff Court, and an action to declare 
 a partnership ended is not included amongst the exceptions of 
 the Sheriff Courts Act, 1907. Nor is it an action the object 
 of which is to declare the personal status of an individual. 
 Accordingly, the Sheriff Court now seems to have jurisdiction 
 to declare a partnership at an end (a) when a partner has 
 become insane; (h) when he has in any other way become 
 incapable of performing his part of the contract ; (c) when his 
 conduct is prejudicial to the business; (d) when he persistently 
 acts in breach of the contract, so as to make it impracticable 
 for other parties to carry on the business ; (e) where the busi- 
 ness is being carried on at a loss ; or, generally if) where the 
 Court is of opinion that, in the circumstances, it is just and 
 equitable that the partnership should be dissolved. 
 
 Appendix, s. 5 (1). 53 & 54 Vict. c. 39, s. 35. 
 
 (2) Procedure. 
 
 1408. An action brought under this statute is an ordinary 
 action, which may be sued at the instance of any one or more 
 of the parties, other than the partner complained against. If 
 the partner who is desired to be put out resides in Scotland, 
 probably the appropriate Court is that of his domicile, but 
 each partner of a firm may be said to carry on business at 
 the firm's place of business, and so such an action may be 
 competent in the Court of the district where the firm carries 
 on business. In the case of declared insanity, a curator bonis 
 might apparently sue, or concur in suing, for declarator that 
 the partnership has come to an end, the curator being a " person 
 " having title to intervene." If other partners sue, any 
 partners who are not included in the instance as pursuers should 
 be called as defenders. The initial writ should set forth the 
 constitution of the partnership, and briefly narrate the circum- 
 stances in which the Court is asked to declare it at an end. 
 The crave will be for declarator that, in respect of the defender's 
 condition or conduct, as set forth, the pursuers are not longer 
 bound to continue in partnership with him, and accordingly 
 to find and declare that the partnership has come to an end, as
 
 G18 STATUTORY POWERS AND DUTIES. 
 
 at the date of the decree of Court, or at some other specified 
 date. 
 
 53 & 54 Vict. c. 35. 
 
 28. Poor Law. 
 (1) Election Petition. 
 
 1409. The Poor Law Act of 1845 made the Sheriff Court 
 
 the Court to determine the validity of the election of a member 
 
 of a Parochial Board. This provision was repeated by the 
 
 Local Government Act of 1894, but a parish councillor falls 
 
 within the definition of the Elections (Scotland) Corrupt and 
 
 Illegal Practices Act of 1890, so that the election of a parish 
 
 councillor may be challenged in the Sheriff Court, in like 
 
 manner to the election of a town councillor. 
 
 8 & 9 Vict. c. 83, s. 27. 57 & 58 Vict. c. 58, Sch. I. 
 
 53 & 54 Vict. c. 55, s. 2. See Par. 1378. 
 
 (2) Relief Order. 
 
 1410. A person who is refused poor law relief has a personal 
 right of appeal in the Sheriff Court of the district where 
 refusal is made. The inspector must deliver to the applicant 
 for relief a certificate stating the grounds of refusal. If the 
 refusal proceeds upon a medical report, as to the applicant's 
 state of health, a copy of that report should also be furnished 
 to the applicant, who may then personally appeal to the Sheriff. 
 No written complaint or appeal is necessary. Production of 
 the certificate of refusal is sufficient warrant to the Sheriff to 
 deal with the appeal. The Sheriff cannot entertain an appeal 
 upon the amount of relief afforded. If the pauper is dis- 
 satisfied with that, his remedy is to make a representation to 
 the Local Government Board. It is only when relief is alto- 
 gether refused that the Sheriff can review the decision of the 
 inspector of poor. The proceedings are viva voce and summary. 
 If the Sheriff grant relief, a copy of the order delivered to the 
 inspector is sufficient intimation to him, and, in practice, an 
 order granting relief is directed to be intimated by the pauper, 
 who is furnished with a copy for delivery to the inspector. The 
 inspector must then grant interim relief; but he may lodge a 
 written statement with the Sheriff-clerk giving reasons for 
 not granting relief. The Sheriff may allow answers, and hear 
 parties, and, if necessary, make up a record and take proof. 
 He may also nominate an agent to appear for the poor person,
 
 POOR LAW. 619 
 
 who is empowered to act as if he were one of the acting agents 
 
 for the poor. The only competent decision of the Sheriff is 
 
 that the applicant is, or is not, entitled to relief. If he is not, 
 
 the interim order for relief will, of course, fall. If he is, the 
 
 finding will be a declarator to that effect, leaving- the Parish 
 
 Council to fix the amount. 
 
 8 & 9 Vict. c. 83, s. 73, 74. Act of Sederunt, 12th February, 
 
 1846. 
 
 (3) Removal of Paupers. 
 
 1411. Paupers who are being relieved by any parish in 
 Scotland, but who have not acquired a settlement in Scotland, 
 may be removed to the place of their birth settlement in 
 England, Ireland, or the Isle of Man. The Sheriff Court has 
 privative jurisdiction in this matter. The application is made 
 in the Sheriff Court of the district within which the pauper 
 has become chargeable. It is an ex parte summary application, 
 at the instance of the inspector of poor of the parish to which 
 the person desired to be removed has become chargeable, setting 
 forth the nativity and reputed age of the pauper, and the fact 
 that he has not acquired a settlement in Scotland, and that he 
 is presently being relieved by the applicant's parish. The 
 crave is for an order authorising his removal to the workhouse 
 of the parish or union within which he was born. The Sheriff, 
 before granting such an order, must see the person proposed 
 to be removed, and if necessary a certificate by a medical 
 practitioner that the person is in a fit state of health to be 
 removed. He is also required to take a deposition from the 
 pauper as to the circumstances. The decision of the Sheriff 
 or Sheriff-Substitute who grants the order is final, as regards 
 the judicial proceedings, but, upon an order of removal being 
 granted, intimation is made by the inspector who has obtained 
 the order to the board of the union or parish to which it is 
 proposed to remove the pauper, and within fourteen days that 
 board may appeal to the Local Government Board. 
 
 25 & 26 Vict. c. 113, s. 1, 2, -1. 61 & 62 Vict. c. 21. 8. 5 (2). 6. 
 
 29. IN blic Ukalth. 
 
 (1) General. 
 
 1412. The Public Health Acts, 1907-1911, are to be read 
 along- with the Burgh Police Acts, the Local Government
 
 620 STATUTORY POWERS AND DUTIES. 
 
 Acts, the Lands Clauses Act of 1840, and various other statutes 
 which are administered under the general direction of the 
 Local Governmeni Board. The local administrators are in 
 burghs the Town Council, and in counties the County Council 
 (or the District Councils where a county is divided into 
 districts). Where a parish or burgh lies within more than 
 one county, the Local Government Board determines where it 
 is held to be situated for the purposes of the public health 
 statutes. When any question arises necessitating the inter- 
 vention of the law Courts the proceedings are taken in the 
 Sheriff Court of the district where the question arises. The 
 Sheriff is invested with powers to enforce the provisions of 
 the statutes. He is also the appellate judge against the 
 undue exercise of statutory powers by the local authority. 
 Legal proceedings under the statutes may he either at the 
 instance of, or directed against, the local authority, as well 
 as at the instance of, or directed against, owners or occupiers 
 of property. 
 
 60 & 61 Vict. c. 38. 8 Ed. VII. c. 62. 
 
 63 & 64 Vict. c. 49. 9 Ed. VII. c. 44. 
 
 1 Ed. VII. c. 24. 
 
 (2) Nuisances. 
 
 1413. The most important matter in which the aid of the 
 Sheriff Court is invoked is the suppression of nuisances. Of 
 course, the statutory powers conferred upon the Sheriff do not 
 limit his common law powers to entertain actions of interdict 
 or damages founded upon the existence of a nuisance, for a 
 nuisance at common law is not necessarily a statutory 
 nuisance. No hard and fast definition of a nuisance is 
 possible. It is a question of circumstances always. Lord 
 Chancellor Selborne thus defined a nuisance—" What causes 
 " material discomfort and annoyance for the ordinary purposes 
 " of life, to a man's house, or his property, is to be restrained, 
 " subject, of course, to any findings which the particular 
 " circumstances of the particular case may raise." But, 
 before the summary procedure under the Public Health Act 
 can be resorted to, a person must be, by act or by default, 
 the author of the nuisance— that is to say, he must have done 
 some positive act which creates a nuisance injurious to the 
 public health; or he must have refrained from taking some
 
 IMHIJC IIKAI.TII. 62] 
 
 remedial measures to remedy a nuisance which is prejudicial 
 to the public health. 
 
 60 & 61 Vict. c. 38. Tay District I Board v. 
 
 Fleming v. Hislop, 1886, 13 R. Robertson, 1887, 15 R. 40. 
 
 (H.L.) 43. Rennie v. North British Railway 
 
 Company, 1910, S.C.R. 100. 
 
 1414. The local authority act in the first instance without 
 the Sheriff's authority. If their medical officer, or sanitary 
 inspector, has reasonable grounds for believing that a 
 nuisance exists in any premises, he may demand admission, 
 and if there is no person in charge to give or refuse admission, 
 he may, if need be, enter forcibly. But if there is a person 
 in charge, and objection is made to entry, a warrant from 
 the Sheriff is necessary. " Premises," for statutory purposes, 
 includes " any ship lying in any sea, river, harbour, or other 
 " water, or ex adverso of any place within the limits of the 
 " local authority." 
 
 60 & 61 Vict. c. 38, s. 3-18. 
 
 1415. To obtain access, a summary application may be 
 made in the Sheriff Court. If the crave is restricted to a 
 warrant to enter the premises, the initial writ briefly narrates 
 the nature of the nuisance suspected to exist, and the fact 
 that entry to the premises has been refused to the medical 
 officer or sanitary inspector. The crave should include 
 warrant to open shut and lockfast places. The object of this 
 application being no more than to obtain entry, it may be 
 an ex parte application, at the instance of the local authority, 
 or of the medical officer or sanitary inspector; but the Sheriff, 
 if he think that necessary, may require the application to be 
 supported by a deposition on oath by the medical officer or 
 sanitary inspector, or both, stating the grounds of their 
 complaint. In the writ it is sufficient to set forth the section 
 of the Act under which the proceedings are taken, without 
 quoting its terms. An order to afford entry to premises is 
 an ad factum, prastandum decree. It may be granted against 
 the owner, or the occupier, or the person in charge, of the 
 premises. 
 
 60 & 61 Vict. c. 38, s. 18, 154. 
 
 1416. Such an application, however, is seldom restricted
 
 f.JJ STATUTORY POWERS AND DUTIES. 
 
 to a ciave for a warrant to effect entry, because the nature 
 of the nuisance is generally known, and the crave for a 
 warranl to enter may be included in the crave for the remedy 
 of the nuisance. The proceedings are directed against the 
 author of the nuisance, who is generally, but not necessarily, 
 the owner or the occupier of the premises. The defender 
 called is the party alleged to be the author of the nuisance, 
 but intimation must always be made to the owner or occupier. 
 The crave is for an order to ordain the defender, within a set 
 time, to remove the nuisance. Service is usually ordered 
 upon three days' indue ia?. The first deliverance appoints a 
 diet for hearing. If the matter is of sufficient importance, 
 answers may be ordered. If no appearance is made, or, after 
 appearance, if the Sheriff is satisfied, by a remit to a reporter, 
 or by proof, or otherwise, that a nuisance exists, he may order 
 its removal. The proceedings are summary, and if proof is 
 necessary the diet of proof is directed by the statute to be not 
 more than five days after the first hearing. No formal record 
 of evidence is essential, but, in cases where appeal is com- 
 petent, it is desirable to have the evidence recorded. 
 
 60 & 61 Vict. c. 38, s. 154, 155. 
 
 1417. In general there is no appeal from the Sheriff- 
 Substitute to the Sheriff, nor is the order subject to review 
 by suspension. But to this general rule there are exceptions, 
 when the nuisance complained of is (a) that a factory furnace 
 does not consume its own smoke ; (b) that a chimney other 
 than that of a private dwelling-house emits smoke in such 
 quantities as to be injurious to the public health ; (c) 
 that a cemetery is by its situation, or by overcrowding, 
 or otherwise, dangerous or injurious to health. In 
 these cases, if it appears to the Sheriff-Substitute 
 that (a) the value of the subject alleged to be a nuisance, 
 {!>) the cost of operations for its removal, (c) the value 
 of the trade or business which would be interfered with, 
 exceeds £25, and does not exceed £50, an appeal to the Sheriff 
 is competent, by note of appeal, lodged with the Sheriff-clerk, 
 and served upon the respondent or his known agent, within 
 three days. The proceedings are summary, and the Sheriff's 
 decision is final. 
 
 60 & 61 Vict. c. 38, s. 16 (9) Dumfries Local Authority v. 
 
 (10) (11), 156. Murphy, 1884, 11 R. 694.
 
 PUBLIC HEALTH. 623 
 
 1418. If (lie value exceed £50, there is a further appeal to 
 the Lord Ordinary on (he Hills, by note of appeal lodged in 
 the Bill Chamber, and served upon the respondent, within 
 eight days. The appellant must find caution for implement 
 of the judgment which may be pronounced. The judgment 
 of the Lord Ordinary on the Bills is final, unless he grant 
 leave to reclaim. Besides being liable to civil process, an 
 owner or occupier who tails to obtemper an order to remove a 
 nuisance is guilty of an offence under the Act, and may be 
 prosecuted under the Summary Jurisdiction Act. When an 
 order is made for remedial measures, which may occupy time, 
 the order to afford entry to premises continues in force till 
 the work has been completed. 
 
 60 & 61 Yict. c. 38, s. 18, 154-156. 
 
 (3) Notice. 
 
 1419. Before any application to the Court is competent, 
 certain preliminary procedure is necessary on the part of the 
 local authority. These preliminaries include (a) notice to the 
 author of the nuisance, or, if he cannot be found, to the 
 owner or occupier of the premises where the nuisance is 
 alleged to exist, calling upon him to remove the nuisance 
 within a specified time, and if, in the opinion of the local 
 authority, particular work is necessary, requiring that par- 
 ticular work to be done; (b) similar notice to the person in 
 charge of the premises ; (c) if the nuisance arises from 
 structural defect, notice to the owner ; (d) notice to any other 
 interested party who ought, in the opinion of the Sheriff, to 
 be notified. 
 
 60 & 61 Vict. c. 38, s. 20, 22. 
 
 (4) Form of Order. 
 
 1420. The order of the Sheriff may ordain the party com- 
 plained against to execute certain specified work, within a 
 specified time, or may ordain him to cease from doing certain 
 specified acts. If the nuisance is one likely to recur, the 
 Sheriff may grant interdict, if that has been craved for. 
 Further, if the nuisance is such as to render a house or building- 
 unfit for habitation or use, the Sheriff may temporarily prohibit 
 its occupancy or use, and, after the remedial work has been 
 executed, he may authorise it again to be inhabited or used. 
 
 60 & 61 Vict, c 38, s. 23.
 
 624 STATUTORY POAVKKS AND DUTIES. 
 
 (5) Execution of Work. 
 
 1421. When structural works ;ue necessary, the Sheriff may 
 require the Local authority to furnish an estimate of the cost, 
 and, if the work is not otherwise done, he may authorise the 
 Local authority to execute it, at the expense of the author of 
 the nuisance, or of the owner or occupier of the premises. 
 When anything which is creating a nuisance is ordered to be 
 removed, the Sheriff may order its destruction, or authorise 
 it to be sold and the price applied primo loco towards the 
 expense incurred by the local authority with reference to the 
 nuisance, the surplus, if any, being payable on demand to the 
 owner of the thing so sold. 
 
 60 & 61 Vict. c. 38, s. 25, 26, 27. Cadder Local Authority, 1879, 
 
 United Kingdom Temperance 6 R. 1242. 
 
 Institution v. Cadder Local 
 
 Authority, 1877, 4 R. (J.) 39. 
 
 (6) Offensive Trades. 
 
 1422. For the enforcement of the provisions of the public 
 health statutes, or of bye-laws enacted by local authorities 
 under their statutory powers, the Sheriff has a special kind of 
 jurisdiction, of a mixed civil and criminal character. Besides 
 imposing penalties, or in lieu thereof, the Sheriff may make 
 orders. The most important matter in regard to which the 
 aid of the civil Court may be thus invoked is the conduct of 
 offensive trades. If bye-laws contain, as they usually do, power 
 to stop offensive works, the Sheriff, in convicting for a contra- 
 vention, may add to his judgment an order debarring the 
 person convicted from temporarily or permanently carrying on 
 the trade complained of. An order of this sort is not subject 
 to review by suspension, and there is no appeal from the 
 Sheriff-Substitute to the Sheriff, but there is a summary appeal 
 to the Lord Ordinary on the Bills, whose decision is final. 
 
 60 & 61 Vict. c. 38, s. 32 (4), 156-157. 
 
 1423. Taking proceedings for the suppression of an offensive 
 trade is, in general, a matter within the discretion of a local 
 authority, but it is compulsory upon them to initiate such 
 proceedings (a) upon a report by their medical officer ; (b) upon 
 the requisition of a Parish Council ; (c) upon the requisition of
 
 PUBLIC HEALTH. 625 
 
 at least ten householders resident within the district where the 
 trade complained of is carried on. The proceedings may be 
 
 taken in the Sheriff Court, or in the Court of Session; but this 
 latter course is in general adopted only where the case is one 
 of exceptional importance, or where, although ao1 in itself 
 serious, It is a test case affecting other industries carried on 
 in the district. A local authority may take proceedings in 
 the Sheriff Court of the district where the offensive works are 
 situated, if the trade is offensive to persons within the area 
 of the local authority's jurisdiction, although the works com- 
 plained of may be outside of it. In all cases, the proceedings 
 must be taken in the Sheriff Court of the district where the 
 trade is carried on. In this matter, there is an exception also 
 to the general process rule, that a summary application musl 
 be disposed of by judgment, for the Court has a discretion to 
 suspend final judgment, if the person complained against 
 undertakes to execute such remedial measures as the Court 
 may prescribe. 
 
 Appendix, s. 50. Kelso District Commissioners v. 
 
 60 & 61 Vict. c. 38, s. 36, 149. Fairbairn & Ferguson, 1891, 3 
 
 7 Ed. VII. c. 51, s. 50. White, 94. 
 
 Tait v. Johnston, 1891, 18 R. 
 606. 
 
 (7) Drainage, fyc, Districts. 
 1-124. The Sheriff Court is a Court of Appeal against 
 resolutions or orders of the local authority, in regard to various 
 important matters, including the formation, or extension, or 
 combination of scavenging, drainage, and water districts. 
 Under the Public Health and Local Government Acts, a County 
 Council may resolve to form an area into a special district 
 for such purposes. " Any person interested " has a right of 
 appeal to the Sheriff, which must be taken within twenty-one 
 days of the date of the publication of the resolution. Such an 
 appeal is a summary application, the initial writ in which 
 will set forth the title and interest of the appellants, and the 
 terms of the resolution or order objected to, and crave the 
 Court to disapprove of the resolution or order, or to vary its 
 terms. The Sheriff, in his discretion, may dispose of the 
 appeal at a hearing, or order answers, or take proof. If the 
 application is entertained by the Sheriff, no record of evidence 
 is necessary, for the Sheriff's decision is final ; but if the process 
 is before a Sheriff-Substitute, and the matter is of sufficient 
 40
 
 626 STATUTORY POWERS AM) DUTIES. 
 
 importance, the recording of the evidence is convenient, for 
 there is an appeal from the Sheriff-Substitute to the Sheriff. 
 
 52 & 53 Vict. c. 50. 60 & 61 Vict. c. 38, s. 38, 39, 
 
 57 & 58 Vict. c. 58, s. 44. 122-131. 
 
 8 Ed. VII. c. 62, s. 14. 
 
 142">. As regards appeal against resolutions to form a 
 drainage, &c, district, the jurisdiction of the Sheriff-Substitute 
 is excluded, if lie is resident within the district. This was 
 probably intended to mean resident within the area which is 
 proposed to be formed into a special drainage, or water, or 
 scavenging district, although as expressed, it seems to mean 
 resident within any part of the district administered for public 
 health purposes by the local authority. " District " in section 
 122 of the Public Health Act, 1897, is not qualified, and under 
 the interpretation clause " district " when unqualified means 
 " the district of any local authority under this Act.'' Accord- 
 ingly, if a district includes an entire sheriffdom, each Sheriff- 
 Substitute resident within it would appear to be excluded, and 
 all such appeals must be heard by the Sheriff. Curiously 
 enough, having 1 his residence within the district does not seem 
 to disqualify the Sheriff, for the statutory disability is expressly 
 restricted to the Sheriff-Substitute. 
 60 & 61 Vict. c. 38, s. 3, 122, 131. 
 
 1426. Under the Local Government Act of 1908, a Town 
 Council in the near vicinity of an area proposed to be formed 
 into a special drainage, &c, district has a title to appeal 
 against the resolution of the County Council, if that Town 
 Council is taking proceedings for extension of boundaries, to 
 include the area proposed to be included in the special 
 drainage, &c, district. 
 
 8 Ed. VII. c. 62, s. 14 (3). 
 
 (8) Sewer Construct ion. 
 
 1427. A local authority has statutory powers to construct 
 and maintain sewers, and for these purposes to enter upon 
 lands. If an owner or occupier refuse access, after being 
 notified to afford it, a summary application may be presented 
 in the Sheriff Court of the district where the lands lie, narrating 
 the general nature of the work proposed, and the refusal of
 
 PUBLIC HEALTH. 627 
 
 the owner or occupier to afford entry, and craving warrant 
 to pursuers or their officers, or others baving their authority, 
 for the purpose of carrying out the sewer work, to enter upon 
 the lands. The procedure is summary, and the Sheriff's 
 decision is final. An order upon an owner or occupier to afford 
 access to lands is a decree ad factum prcestandum. 
 
 60 & 61 Vict. c. 38, s. 109-159. 
 
 (!ij Boundary Ditches. 
 
 1428. If a water course, or open ditch, lying near to, or 
 forming the boundary between, the districts of two Loca] 
 authorities, is offensive, either local authority may present a 
 summary application in the Sheriff Court of the district where 
 the ditch lies, craving the Court to make an order for cleansing 
 the ditch, or for executing permanent works if vsuch are neces- 
 sary to remove the cause of offence. The other local authorities 
 will be called as defenders. The proceedings are summary, and 
 the Sheriff may inform himself of the circumstances by remit, 
 or by proof, or inspection. The Sheriff may make such order 
 as seems to him reasonable in the circumstances, in regard to 
 (a) execution of works ; (b) the persons by whom the work is 
 to be done ; (c) the allocation of the cost between the local 
 authorities. The Sheriff or Sheriff-Substitute may deal with 
 this matter. The judgment of either is final. 
 
 60 & 61 Vict. c. 38, s. 41-157. 
 
 (10) Unsound Food. 
 
 1429. The medical officer, or sanitary inspector, of a local 
 authority has statutory power to seize any animal or carcase, 
 or any article, solid or liquid, intended to be sold or used for 
 human food, if in his opinion the food is unsound. But, 
 although he may impound it at his own hand, the officer 
 requires the authority of the Court to destroy it. The person 
 exposing the food may be liable to a penalty. If he is. an 
 order for the destruction of the food may, if convenient, be 
 made in the judgment imposing the penalty. Hut there may 
 be no prosecution instituted, and the right to obtain a warrant 
 to destroy the food is not affected by whether there is liability 
 to a penalty or not. A summary application craving warrant 
 to destroy the food may be presented in the Sheriff Court of
 
 628 STATUTORY POWERS AND DUTIES. 
 
 the district where the food was seized. It is an ex parte 
 application; but, if he thinks it necessary, the Sheriff may 
 order intimation, and may hear any interested persons. The 
 bona fides of the person who exposed the food for sale is not 
 an element for inquiry. The only matter upon which the 
 Sheriff has to be satisfied, in this process, is the condition of 
 the food. There is no appeal against the warrant to destroy. 
 60 & 61 Vict. c. 33. s. 43 (1). 
 
 (11) Infectious Disease. 
 
 1430. The local authority has power, without special 
 warrant, to remove to hospital any person suffering from an 
 infectious disease. But persons on the premises who have been 
 in contact with the invalid may be an equal danger to public 
 health, although they are not themselves yet sick. Such 
 persons also may be compulsorily removed, under warrant of 
 the Sheriff, from any premises, or from a van, or cart, or ship 
 temporarily within, or ex adverso of, the territory. Upon the 
 application of the local authority, the Sheriff, if satisfied that 
 the proposed removal is in the interest of public health, may 
 grant a removal warrant, against which there is no appeal. 
 
 60 & 61 Vict. c. 38, s. 47 (4) (5), 54. 
 
 (12) Compulsory Burial. 
 
 1431. When a dead body is (a) retained in any house, to 
 the detriment of the health of the inhabitants ; or (b) found 
 unclaimed, the Sheriff may order it to be buried. It may be 
 convenient that a summary application be presented, especially 
 where relatives are known, but this is not essential, for the 
 statute authorises the Sheriff to make an order upon production 
 to him of a certificate by the medical officer, or by any qualified 
 medical practitioner, setting forth that the presence of the 
 body is inimical to health. If any friends or relatives are 
 known, and if the circumstances permit, they should be 
 notified; for the local authority may recover the cost of burial 
 " in a summary manner from any person legally liable." 
 
 60 & 61 Vict. c. 38, s. 69 (1) (2), 154, 155. 
 
 (13) Underground Dwellings. 
 
 1432. It is an offence under the Public Health Acts to let 
 for occupation certain defined underground premises. It is
 
 I'U;LI<: IIKALTIf. 629 
 
 also an offence to permit certain premises to be overcrowded. 
 Two convictions within three months warrant the Sheriff 
 closing the premises. A closing order may be added to the 
 conviction, or it may be granted in a summary application 
 presented in the Sheriff Court of the district where the premises 
 are situated. The initial writ should briefly describe and 
 identify the premises, as fulling within the statute, and sei 
 forth the offences and convictions, and crave the Court to grant 
 an order directing the premises to be closed. The Sheriff's 
 decision is final. 
 
 60 & 61 Vict, c. 38, s. 74, 75, 76, 154, 155. 
 
 (14) Common Ziodging-houses. 
 
 1433. Premises used as a common lodging-house must be 
 registered by the local authority, and the certificate renewed 
 annually. If the premises have become unsuitable, renewal of 
 the certificate may be refused. But at any time whilst the 
 premises are registered, upon a summary application presented 
 by the local authority, after notice, and hearing, and due 
 inquiry, the Sheriff may find that the premises are unsuitable 
 for use as a common lodging-house, and grant warrant for 
 removal from the register, either permanently or until the 
 further orders of Court. The Sheriff's decision is final. 
 
 60 & 61 Vict. c. 38, s. 89, 90, 92, 154-156. 
 
 (15) Use of Sewers. 
 
 1434. When a local authority has constructed sewers, it 
 may be the right of owners or occupiers beyond the limits of 
 that local authority's territory to have the use of these sewers, 
 upon terms to be arranged. If parties cannot agree upon term-. 
 either party may present a summary application, in the Shei iff 
 Court of the district where the sewer, or that portion of it the 
 use of which is claimed, is situated. The initial writ should 
 narrate the grounds upon which use of the sewer is claimed, and 
 the failure to agree upon terms, and crave the Cmut to deter- 
 mine the terms and conditions upon which use of the sewer 
 may be made. The proceedings are summary, and the Sheriff's 
 decision is final. 
 
 60 & 61 Vict. c. 38, s. Ill, 154- Telford r. Perth District Com- 
 
 157. missioned, 24 S.C.R. 241.
 
 630 STATUTORY POWERS AND DUTIES. 
 
 (1G) Compulsory Drainage. 
 
 1 1:35. Another important matter which, in case of dispute, 
 is to be "determined summarily by the Sheriff" is the cosl oi 
 providing drainage facilities, where premises are not drained 
 a1 all, or the drainage is not effectual. This may take the form 
 nl a money claim at tin' instance of the local authority for the 
 cost of connecting drains, which work, after notice, the owner 
 has tailed to execute; hut the mat ter which is to be summarily 
 determined by the Sheriff may include also the question whether 
 a new sewer is necessary, as well as the proper cost of it, or 
 the apportionment of the cost amongst interested parties. The 
 procedure is by way of summary application, and the Sheriff's 
 decision is final. 
 
 60 & 61 Vict. o. 38, s. 120, 154. 157. 
 
 (17) Proceedings against Local Authority. 
 
 143G. If a local authority fails iu its duty, the Local 
 Government Board, with the sanction of the Lord Advocate, 
 may present a summary petition to either Division, or, in vaca- 
 tion, to the Lord Ordinary on the Bills, either of whom may 
 summarily, and finally, dispose of the complaint. The Local 
 Government Board also has power to take action in the Sheriff 
 Court against a local authority. They require the sanction of 
 the Lord Advocate, and, this being obtained, the proceedings 
 may be taken at the instance of the local procurator-fiscal. It 
 is nevertheless a civil process, commencing by initial writ, 
 and following the procedure prescribed for a summary 
 application. 
 
 60 & 61 Viet. c. 38, s. 146-148, 154-157. 
 
 (18) Procedure Regulations. 
 
 1437. The Public Health Act of 1897 contains certain 
 directions for civil procedure. So far as these are not incon- 
 sistent with the provisions of the Sheriff Courts Acts, 1907- 
 1913, these statutory directions must be followed. These 
 directions are applicable to all proceedings to effect the pur- 
 poses of the Act, whether the proceedings are at the instance 
 of, or are directed against, the local authority. Thus the 
 provision of the statute wdiick is alleged to have been contra- 
 vened, or which it is desired to enforce, in the initial writ need
 
 PUJHJC HEALTH. 631 
 
 not bo quoted, !>ut may be incorporated by reference; intima- 
 tion or service of a notice may be made by post, or by deli 
 (not necessarily by an officer of Com;,,: or, where an owner or 
 occupier has to be notified, and there is no one in charge of the 
 premises, by affixing a notice " upon some conspicuous pari ol 
 "the premises," a local authority may appear by an official, 
 not necessarily a law agent, &c. So far as not otherwise 
 directed, the procedure in all statutory proceedings follows the 
 usual course of a summary application process in the Sheriff 
 Court. 
 
 60 & 61 Vict. c. 38, s. 146, 148. 152. 154, 156, 157, 158. 159. 
 
 30. Railways. 
 143cS. The Railways Clauses Consolidation (Scotlandj Act 
 of 1845 is a statute similar to the Lauds Clauses Act, and may 
 be incorporated by reference in other Acts, public or private. 
 When lands are taken or used for railway purposes, the com- 
 pensation is ascertained in the manner prescribed by the Lands 
 Clauses Acts. 
 
 8 & 9 Vict. c. 33. s. 37. Ante par. 1338. 
 
 (1) Level Crossings. 
 
 1439. If a railway is to be carried across a road, on the 
 level, the consent of the Sheriff (or two justices) is required. 
 Notice of intention to apply for such consent i^ given by news- 
 paper advertisement, and by placard in the locality, at least 
 fourteen days previously. The notice should specify the time 
 and place where the application for consent will be heard, 
 so that any interested parties may attend. The application, 
 if brought in the Sheriff Court, will take the form of a 
 summary application. If there are no written pleadings, there 
 is no appeal from the judgment of the Sheriff-Substitute 
 granting- or refusing consent. If a record has been made up, 
 there is an appeal to the Sheriff; but the Sheriff Court judg- 
 ment is not further subject to review. 
 
 8 & 9 Vict. c. 33, s. 39, 53, 147- Hendry's Trustees ,-. West High- 
 
 150. land Railway Company, 1894, 
 
 10 S.C.R. 33. 
 
 (2) Accommodation Works. 
 
 1440. A railway company is bound to provide accommoda- 
 tion works, such as gates, bridges, culverts, &c, to make good
 
 632 STATUTORY POWERS AND DUTIES. 
 
 any interruptions caused by railway construction to the use 
 of the Lands through which the line passes. Differences arising 
 in reerard to the construction or maintenance of such works 
 may be settled by tin; Sheriff. The aggrieved party, or the 
 company, may present a summary application in the Sheriff 
 Court of the district where the accommodation works are 
 required. The initial writ should set forth the necessity for, 
 and the nature of, the accommodation works, and crave the 
 Court to order the company to execute the same, within a time 
 to be fixed by the Court. The crave should also conclude for 
 authority to the pursuer himself to execute the works which 
 may be ordered, failing the company doing so within the time 
 fixed by the Sheriff, and for decree in that event for the sum 
 which may be ascertained to be the cost. The first deliverance 
 will fix a diet for hearing the application. By remit, or 
 inspection, or proof, or otherwise, the Sheriff may satisfy 
 himself. The decision of the Sheriff-Substitute ordering or 
 refusing to order such accommodation works is final, unless a 
 record has been made up, in which event there is appeal to 
 the Sheriff, whose decision is final. 
 8 & 9 Vict. c. 33, s. 60-62, 147-150. 
 
 (3) Sheriff -clerk's Duties. 
 
 1441. The statute requires Sheriff-clerks to receive the 
 deposited plans and books of reference of railway undertakings ; 
 to arrange for the public inspecting them ; and to furnish 
 parties with certified copies or excerpts. The Sheriff-clerk's 
 certificate makes these receivable as evidence in any Court of 
 law. 
 
 8 & 9 Vict. c. 33, s. 9, 10. 
 
 (4) Valuation of Railways. 
 
 1442. Under the Lands Valuation Act of 1854, it is the 
 duty of the Assessor of Railways and Canals to notify a railway 
 company of the terms of the entry which is being made as to 
 their undertaking, in the valuation roll which is being made 
 up for the year. If aggrieved, the company may make a 
 representation to the assessor, and he has power at his own 
 hand to alter the entry, or the company may appeal against 
 the assessor's valuation to the Lord Ordinary on the Bills, or, 
 where the lands and heritages are all within one county, to the
 
 RAILWAYS. 633 
 
 Sheriff. A like right of appeal is available in ;i Parish Council, 
 or County Council, or Town Council, having an interest to 
 object to tbe assessor's valuation. An appeal to the Sheriff 
 will take t he form of a summary application, craving the < lourt 
 to ordain the assessor to alter the entry. The initial writ should 
 narrate the assessor's valuation, and set forth the grounds of 
 objection to it. The procedure is summary, and the decision 
 of the Lord Ordinary on the Bills, or of the Sheriff, as the case 
 may be, is final. 
 
 17 & 18 Vict. c. 91, s. 24-25. 57 & 58 Vict. c. 36, s. 2-3. 
 
 31. Roads and Bridges. 
 (1) Joint J 3 ridge Committee. 
 
 1443. A bridge which is not situated wholly within one 
 county or burgh falls to be maintained, and, if need be, 
 rebuilt, at the joint cost of the counties or burghs within which 
 the bridge is partly situated, and of counties and burghs the 
 traffic of which the Secretary for Scotland decides is accom- 
 modated by the bridge. The management is vested in a Joint 
 Bridge Committee. If a difference of opinion arises 
 in the committee, and if there is an equality of votes, 
 the question upon which a difference has arisen is referred 
 to the standing arbiter, if there is one. The joint 
 committee is entitled (but not bound) to nominate annually 
 a standing arbitrator. If an arbitrator has not been so 
 nominated, he is nominated, not by the Sheriff of the district 
 of either local authority, but by the Sheriff of any adjoining 
 county. The appropriate form appears to be a summary 
 application at the instance of the Joint Bridge Committee, or 
 of any one or more of its members. The initial writ will briefly 
 narrate the question upon which the difference of opinion, and 
 the equality of vote has arisen, and the fact that there is no 
 nominated standing arbitrator, and crave the Court to nominate 
 an arbiter to settle the question. 
 
 41 & 42 Vict. c. 51, s. 39-88. Lanarkshire Road Trustees c. 
 
 Glasgow Magistrates, 1887, 14 
 R. 890. 
 
 (2) Extraordinary Traffic. 
 
 1444. A person, or a local authority, or other body respon- 
 sible for causing extraordinary traffic, which has increased the
 
 63-4 STATUTORY POWERS AM) DUTIES. 
 
 cost of upkeep of a road, is liable for the excess cost of upkeep 
 beyond the average expense of road repair. The original 
 direction of the Roads and Bridges Act of 1878 was that the 
 local authority mighl recover this expense "in a summary 
 " manner before the Sheriff, whose decision shall be final"; 
 but the Local Government Act of 1908 amended this to the 
 effed (a) that such expense may be sued for in the Sheriff 
 Court, without appeal, if not exceeding £50; and (b) that if it 
 exceed £50, it may be sued for either in the Sheriff Court with 
 appeal, or in the Court of Session. In other words, this expense 
 has now become a statute-created debt, which may be sued for 
 under the rules of the Sheriff Courts Acts, 1907-1913. The 
 action is founded upon a certificate by the road surveyor, which 
 will be produced with the initial writ. It must be proved (1) 
 that the extra cost of maintenance has been incurred; (2) that 
 it has been necessitated by the exceptional traffic condescended 
 on. 
 
 41 & 42 Vict. c. 51, s. 57. Greenock and Port-Glasgow 
 
 8 Ed. VII. c. 62, s. 24. Tramway Company v. Rankin 
 
 Berwickshire Road Trustees v. & Blackmore, 1913, 29 S.C.R. 
 
 Martin, 1885. 1 S.C.R. 387. 30. 
 
 (<•>) Barbed Wire Fences. 
 
 1445. Under the Barbed Wire Act, 1893, a County Council, 
 or Town Council, or other local authority having the control 
 of highways, is empowered to require the removal, or altera- 
 tion, of any barbed wire fence adjoining- a highway, and 
 which is a nuisance to such highway. Notice is, in the first 
 place, to be given to the owner of the lands upon which the 
 barbed wire fence has been erected, declaring it a nuisance, 
 and calling upon him, within a specified time, not less than 
 a month, "to abate such nuisance." If the owner fail to 
 comply with the notice, the local authority may present a 
 summary application in the Sheriff Court of the district where 
 the objectionable fence is situated. The initial writ will 
 describe the situation and character of the fence, and set 
 forth in what respect it is a nuisance, and crave the Court (a) 
 to ordain the defender to abate the nuisance by removing- the 
 fence or otherwise; (b) failing his doing so within such time 
 as the Court shall appoint, to authorise the local authority 
 to execute such work as is necessary to abate the nuisance, 
 at the sight of such person as the Court shall appoint ; (c) to 
 find the defender liable for the cost of such work, and for
 
 ROADS AND BRII«;|X 
 
 the expenses of process, andtodecerD againsl him for payment 
 of the amount thereof as 1 lu^ same shall be ascertained in the 
 process. The proceedings are summary, and the Courl may 
 
 ascertain the circumstances by inspection, or remit, or proof, 
 or otherw ise. 
 
 56 & 57 Vict. c. 32, s. 3 (1) (2). 
 
 144G. When a local authority are the occupiers of the 
 lands upon which the fence exists, the like proceedings may 
 be instituted by any ratepayer within the district of the local 
 authority, the preliminary notice being properly served upon 
 the local authority if served upon its clerk. 
 56 & 57 Vict. c. 32 s. 4. 
 
 i 1 ) I ntt r, st of Judge. 
 
 1447. This statute creates an exception to the general rule 
 
 that a judge is disqualified by interest, for it expressly enacts 
 
 that no person is disqualified from acting as a Sheriff or Justice 
 
 of the Peace, in the execution of the statute, by reason of his 
 
 being a road trustee. Thus a county councillor who is also 
 
 an honorary Sheriff would appear nevertheless to be entitled 
 
 to preside in the Sheriff Court in proceedings under the Act, 
 
 but unless in very exceptional circumstances he is not likely 
 
 to do so. 
 
 41 & 42 Vict. c. 51, s. 113. Berwickshire Road Trustees v. 
 
 54 & 55 Vict. c. 32. Martin, 1885, 1 S.C.R. 387. 
 
 (5) Bye-laws. 
 
 1448. Bye-laws framed by the local authority charged with 
 the care of highways and bridges are not binding until approved 
 by the Sheriff. On the local authority making application 
 for approval of bye-laws the Sheriff or Sheriff-Substitute 
 will order publication, in a newspaper circulating in the 
 district, of the text of the proposed bye-laws, and of the date 
 upon which they will be considered, which must be at least 
 ten days from the date of the newspaper advertisement. At 
 the diet so fixed any interested party may appear and be heard. 
 
 41 & 42 Vict. c. 51, s. 104. 
 
 32. Telegraphs. 
 
 1449. Question- arising between the Postinaster-lieneral 
 and any company duly authorised to erect telegraphs an-
 
 63G STATUTORY POWERS AND DUTIES. 
 
 directed by the Telegraphs Act, 1863, to be determined under 
 the provisions of the Lands Clauses and Railway Clauses Acts 
 for the settlement of damages claims. Besides Ibis general 
 provision, certain powers arc conferred upon the Sheriff by 
 the Telegraph Act, 1878, to settle differences arising between 
 the Postmaster and any body or person having control over- 
 public roads. The Telegraph Act, L908, broadened this pro- 
 vision to include differences arising with certain private owners 
 or occupiers. Any person interested may bring a summary 
 application in the Sheriff Court of the district where the 
 subject matter of the dispute arises, narrating the circum- 
 stances in which the dispute arises, and formulating the point 
 upon which the decision of the Sheriff is desired. The crave 
 is to determine the difference in dispute, in terms of the 
 Telegraph Acts and the Regulation of Railways Act. The 
 procedure is that appropriate in an arbitration, and the award 
 of the Sheriff is final so far as the law Courts are concerned ; 
 but any party in the arbitration, who is dissatisfied with the 
 Sheriff's award, is, under the Telegraph Act, 1878, entitled 
 to give notice within twenty-one days, requiring the difference 
 to be referred to the Railway Commissioners, or failing them 
 to the Board of Trade, for review and final decision. The 
 Telegraph Arbitration Act of 1909 made it competent for 
 parties, by agreement, to dispense with the Sheriff Court 
 proceedings, and refer a dispute direct to the Railway 
 Commissioners. 
 
 26 & 27 Vict. c. 112, s. 4. 8 Ed. VII. c. 33, s. 1. 
 
 41 & 42 Vict. c. 76, s. 4. 9 Ed. VII. c. 20. s. 1. 
 
 33. Trade Unions. 
 
 1450. A trade union was defined by the Trade Union 
 Amendment Act, 187G, to mean " any combination, whether 
 " temporary or permanent, for regulating the relations between 
 '"workmen or masters; or between workmen and workmen; 
 " or between masters and masters." Under the Trade Union 
 Act, 1913, the short definition is a combination " the principal 
 " objects of which are under its constitution statutory objects." 
 It is an association within the meaning of Rule 11 of the 
 Sheriff Courts Acts, 1907-1913. But the direction of the Sheriff 
 Courts Acts that procedure in all civil causes shall be conform 
 to the Sheriff Court Rules, is declared to be " subject to the
 
 THADE UNIONS. 637 
 
 '' provisions of any Ad of Parliameni in force alter the passing 
 "of this Act." The Trades Union Acts, L871-1893, are so 
 in force, and accordingly the genera] rules of the Sheriff Courts 
 
 Acts are qualified by the special provisions of the Trade Onion 
 Acts. One provision of the Ad of 1871 is thai a registered 
 trade union may sue and be sued in the name of its trustees, 
 or of any other officer authorised by fhe rule-. Reference 
 should therefore be made to the trade union rules before 
 framing the instance in such actions. If the rules give a 
 direction, that should be followed. If not, the union, like 
 any other association, may sue or be sued in its corporate 
 name. 
 
 Appendix, s. 39, Rule 11. 39 & 40 Vict. c. 22. s. 16. 
 
 34 & 35 Vict. c. 31, s. 9. 2 & 3 Geo. V. c. 30. s. 2. 
 
 1451. One civil action, brought under section 11 of the 
 1871 Act, can apparently be sued only in name of the trustees, 
 namely, an action against the treasurer of a registered trade 
 union for payment of moneys or for delivery of securities, 
 books, papers, and property of the union in his hands. In 
 this class of action the trustees (pursuers) if successful are 
 entitled to claim expenses as between agent and client ; but, 
 curiously enough, this privilege does not appear to apply to 
 the defender, in the event of his being the successful party. 
 
 34 & 35 Viet. c. 31, s. U. 
 
 34. Trusts. 
 
 1452. The powers of the Trusts Acts, 1861-1910, are in 
 general exercised by the Court of Session. But to a limited 
 extent, as resrards the removal of trustees in mortis causa or 
 marriage trusts, the Sheriff Court has a concurrent jurisdiction. 
 If a trustee has (a) become insane ; (b) become incapable of 
 acting by reason of physical or mental disability; (c) been 
 continuously absent from the United Kingdom for six months 
 or more, the Sheriff Court may entertain an application for his 
 removal from office. 
 
 30 & 31 Vict. c. 97. 60 & 61 Vict. c. 8. 
 
 47 & 48 Vict. c. 63. 61 & 62 Vict. c. 42. 
 
 54 & 55 Vict. c. 44. 7 Ed. VII. and 1 Geo. V. c. 22. 
 
 1453. The aid of the Court maybe invoked at the instance
 
 638 STATUTORY POWERS AND DUTIES. 
 
 of (a) one or more co-trustees; or (&) one or more beneficiaries 
 under the trust. If made in the Sheriff Court, the applica- 
 tion is made in the Court whence issued the original confirma- 
 tion of the trustees; or in the case of a marriage contract trust 
 in the Sheriff Court of the district within which the spouses 
 are, or the survivor is, domiciled. The initial writ should 
 narrate (a) the title of the applicant : (&) the constitution of the 
 trust; (c) the names of the trustees; (d) the nature of the 
 alleged incapacity of the trustee desired to be removed. The 
 crave is for declarator that the trustee is incapable of acting 
 in respect of one or more of the statutory reasons. The trustee 
 complained against, or his curator if he is insane, should be 
 called. There are no statutory process directions. This 
 process accordingly falls within the Sheriff Court Rules of 
 Procedure. 
 
 54 & 55 Vict. c. 44, s. 0. 
 
 1454. In the Sheriff Court proceedings are competent only 
 for the removal of a trustee. The Sheriff cannot replace a 
 trustee so removed, for the Court of Session alone has power 
 to appoint new trustees. 
 
 30 & 31 Vict. c. 97, s. 12, 16. 54 & 55 Vict. c. 44, s. 8.
 
 APPENDIX,
 
 APPENDIX. 
 
 THE SHERIFF COURTS (SCOTLAND) ACT, 1907 (7 Ed. VII. 
 c. 51), as amended by THE SHERIFF COURTS (SCOTLAND) 
 AMENDMENT ACT, 1913 (2 & 3 Ceo. V. c. 28). 
 
 An Act to regulate and amend the Laws and practice relating to the AD. 1007. 
 civil procedure in Sheriff Courts in Scotland, and for other purposes. 
 
 [28th August, 1907.] 
 
 "DK it enacted by the King's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, 
 and Commons, in this present Parliament assembled, and by the 
 authority of the same, as follows : — 
 
 Preliminary. 
 
 1. This Act may be cited for all purposes as the Sheriff Courts short title. 
 (Scotland) Act, 1907. 
 
 2. Unless otherwise specially enacted this Act shall come into Commence. 
 operation on the first day of January one thousand nine hundred and ment - 
 eight. 
 
 3. In construing this Act (unless where the context is repugnant interpreter 
 to such construction) — tlon - 
 
 (a) " Sheriff " includes sheriff-substitute : 
 
 (&) " Tenant " includes sub-tenant ; 
 
 (c) " Lease " includes sub-lease ; 
 
 (d) " Action or cause " includes every civil proceeding competent 
 
 in the ordinary sheriff court; 
 
 The only alteration on this is the addition of the words "or cause." 
 
 41
 
 642 AJPPENDIX. 
 
 Sec. 3. (e) "Person" includes company, corporation, or association 
 
 and firm 01 any description nominate or descriptive, or 
 any Board corporate or unincorporate ; 
 
 (/) " Sheriff clerk " includes sheriff-clerk depute ; 
 
 36 & 37 Vict. i</i '■ A'jvnt " means a law-agent enrolled in terms of the Law 
 
 ,,:; - Agents (Scotland) Act, 1873; 
 
 (h) "Final judgment" means an interlocutor which, by itself, 
 or taken along with previous interlocutors, disposes of 
 the subject-matter of the cause, notwithstanding that 
 judgment may not have been pronounced on every 
 question raised, and that expenses found due may not 
 have been modified, taxed, or decerned for; 
 
 (i) " Summary cause " includes — 
 
 Actions (other than actions brought and conducted in 
 the small debt court and claims under the Workmen's 
 Compensation Act) for payment of money not 
 exceeding fifty pounds in amount, exclusive of 
 interest and expenses, and all actions in which 
 either the parties admit that the value of the action, 
 exclusive of interest and expenses, does not exceed fifty 
 pounds, or which they consent at any stage shall be 
 tried summarily; 
 
 The 1913 Act has re-cast and expanded the definition of 
 " Summary Cause." which now includes not only actions 
 for payment of money, but all actions where admittedly 
 the value does not exceed Fifty pounds, exclusive of 
 interest and expenses. 
 
 (;) " Small Debt Acts " means and includes the Small Debt 
 (Scotland) Acts, 1837 to 1889, and Acts explaining or 
 amending the same; 
 
 (k) "Initial writ" means the statement of claim, petition, note 
 of appeal, or other document by which the action is 
 initiated; 
 
 (Z) " Procurator-Fiscal " means procurator-fiscal in the sheriff- 
 court ; 
 
 6 Edw. 7 (m) " Workmen's Compensation Act " means the Workmen's 
 
 c - r,s - Compensation Act, 1906, and any Acts explaining or 
 
 amending the same ; 
 
 (n) " Pursuer " means and includes any person making a claim 
 or demand, or seeking any warrant or order competent 
 in the sheriff court;
 
 SHERIFF COURTS ACTS L907-1913. 643 
 
 (o) "Defender" means and includes any person who is required Sec. 3. 
 to be called in any action ; 
 
 (p) "Summary application" humus and includes all applications 
 of a summary nature brought under the common law 
 jurisdiction of the sheriff, ;tnd all applications, whether by 
 appeal or otherwise, brought under any Act of Parliament 
 which provides, or. according to any practice in the 
 sheriff court, which allows that the same shall be disposed 
 of in a summary manner, but which does not more par- 
 ticularly define in what form the same shall be heard, 
 tried, and determined. 
 
 (7 1 '' Employee " includes the legal personal representative of 
 an employee, and any person who by the law of Scotland 
 may be entitled to solatium in respect of the death of an 
 employee. 
 
 This definition, added by the 1913 Act, gives to "Employee" 
 the same meaning as it has in " The Workmen's Com- 
 pensation Act, 1906." 
 
 Jurisdiction. 
 
 4. The jurisdiction of the sheriffs, within their respective jurisdiction, 
 sheriffdoms shall extend to and include all navigable rivers, ports, 
 harbours, creeks, shores, and anchoring grounds in or adjoining 
 
 such sheriffdoms. And the powers and jurisdictions formerly 
 competent to the High Court of Admiralty in Scotland in all 
 maritime causes and proceedings, civil and criminal, including such 
 as may apply to persons furth of Scotland, shall be competent to 
 the sheriffs, provided the defender shall upon any legal ground of 
 jurisdiction be amenable to the jurisdiction of the sheriff before 
 whom such cause or proceeding may be raised, and provided also 
 that it shall not be competent to the sheriff to try any crime 
 committed on the seas which it would not be competent for him 
 to try if the crime had been committed on land : Provided always 
 that where sheriffdoms are separated by a river, firth, or estuary, 
 the sheriffs on either side shall have concurrent jurisdictions over 
 the intervening space occupied by water. 
 
 5. Nothing herein contained shall derogate from any jurisdiction. Extension of 
 powers, or authority presently possessed or in use to be exercised bv i lu ' ls ' lu ' n ""- 
 the sheriffs of Scotland, and such jurisdiction shall extend to and 
 
 include — 
 
 (1) Actions of declarator (except declarators of marriage or 
 nullitv of marriage, and actions the direct or main
 
 644 APPENDIX. 
 
 Sec. 5. object of which is to determine the personal status of 
 
 individuals) : 
 
 (2) Actions of aliment, provided that as between husband and 
 
 wife they are actions of separation and aliment, adherence 
 and aliment, or interim aliment, and actions for 
 regulating the custody of children : 
 
 This re-casts the sub-section as it appears in the 1907 Act, 
 and clears up the doubt which existed as to whether 
 actions of adherence and aliment, as well as actions 
 of separation and aliment, fall within the extended juris- 
 diction of the Sheriff Court. This clause should be read 
 along with the Proviso of Rule 23. 
 
 (3) Actions of division of commonty and of division or division 
 
 and sale of common property, in which cases the Act of 
 1695 concerning the division of commonties shall be 
 read and construed as if it conferred jurisdiction upon 
 the sheriff court in the same manner as upon the Court 
 of Session : 
 
 (4) Actions relating to questions of heritable right or title 
 
 (except actions of adjudication save in so far as now 
 competent and actions of reduction) including all actions 
 of declarator of irritancy and removing, whether at the 
 instance of a superior against a vassal or of a landlord 
 against a tenant : 
 
 (5) Suspension of charges or threatened charges upon the decrees 
 
 of court granted by the sheriff or upon decrees of 
 registration proceeding upon bonds, bills, contracts or 
 other obligations registered in the books of the sheriff 
 court, the books of council and session, or any others 
 competent where the debt exclusive of interest and 
 expenses does not exceed fifty pounds : 
 
 Provided that actions relating to questions of heritable right or 
 title, including irritancy and removing or to division of commonties 
 or division or divisions and sale, of common property shall, if raised 
 in the sheriff court, be raised in the sheriff court of the jurisdiction 
 and district where the property forming the subject in dispute is 
 situated, and all parties against whom any such action may be 
 brought shall in such action be subject to that jurisdiction : Provided 
 also that it shall be competent for either party at the closing of the 
 record or within six days thereafter to require the cause to be 
 remitted to the Court of Session in the case of actions — 
 
 (a) Relating to questions of heritable right and title where 
 the value of the subject in dispute exceeds fifty pounds, 
 by the year or one thousand pounds in value :
 
 SHERIFF COURTS A< Ts. L907-1913. 645 
 
 (b) Relating to the right of succession to moveables where the Sec. 5. 
 
 value of the subject in dispute exceeds one thousand 
 pounds : 
 
 (c) Relating to division of commonty or division or division and 
 
 sale of common property where the value of the subject 
 in dispute exceeds fifty pounds by the year or one thousand 
 pounds value : 
 
 Provided also, that on cause shown or ex proprio motu the sheriff 
 may at any stage remit to the Court of Session any action mentioned 
 in the second sub-section of this section. 
 
 The phraseology of this Proviso has by the Act of 1913 been altered 
 to correspond with the alteration of sub-section 2. There is no 
 alteration of principle. 
 
 6. Anv action competent in the sheriff court may be brought Action com- 
 " . ■ ,• • » •«• petent in 
 
 within the jurisdiction of the sherin — sheriff court. 
 
 (a) Where the defender (or when there are several defenders, 
 over each of whom a sheriff court has jurisdiction in 
 terms of this Act, where one of them) resides within the 
 jurisdiction, or having resided there for at least forty 
 days has ceased to reside there for less than forty days 
 and has no known residence in Scotland. 
 
 The phraseology of this sub-section has been altered to 
 clear up certain doubts which had arisen as to its 
 meaning. 
 
 {&) Where the defender carries on business, and has a place of 
 business within the jurisdiction, and is cited either 
 personally or at such place of business : 
 
 (c) Where the defender is a person not otherwise subject to 
 
 the jurisdiction of the courts of Scotland, and a ship or 
 vessel of which he is owner or part owner or master, or 
 goods, debts, money, or other moveable property 
 belonging to him, have been arrested within the 
 jurisdiction : 
 
 (d) Where the defender is the owner or part owner or tenant 
 
 or joint tenant, whether individually or as a trustee of 
 heritable property within the jurisdiction, and the action 
 relates to such property or to his interest therein : 
 
 (e) Where the action is for interdict against an alleged wrong 
 
 being committed or threatened to be committed within 
 the jurisdiction :
 
 C4ti 
 
 AIM'KXDIX. 
 
 Sec. 6. (/) Where the action relates to a contract the place of execution 
 
 or performance of which is within the jurisdiction, and 
 the defender is personally cited there : 
 
 ([/) Where in an action of furthcoming or multiplepoinding the 
 fund or suhject in medio is situated within the jurisdiction ; 
 or the arrestee or holder of the fund is subject to the 
 jurisdiction of the court : 
 
 (h) Where the party sued is the pursuer in any action pending 
 within the jurisdiction against the party suing : 
 
 (t) Where the action arises out of the delict of the defender 
 within the jurisdiction, and he is personally cited there: 
 
 (;') Where the defender prorogates the jurisdiction of the court. 
 
 Privative 
 jurisdiction 
 in causes 
 under fifty 
 pounds 
 value. 
 
 7. Subject to the provisions of this Act and of the Small Debt 
 Acts, all causes not exceeding fifty pounds in value exclusive of 
 interest and expenses competent in the sheriff court shall be brought 
 and followed forth in the sheriff court only, and shall not be subject 
 to review by the Court of Session : Provided that nothing herein 
 contained shall affect any right of appeal competent under any Act 
 of Parliament in force for the time being. 
 
 In this clause the 1913 Act has omitted the first Proviso of the 1907 
 text, that Proviso having become unnecessary by the elimination 
 from the " Summary Cause" definition in section 3 (i) of the 1907 
 Act reference to actions ad factum prcestandwm. 
 
 Summary 
 cause pro- 
 cedure and 
 appeal. 
 
 Value of 
 cause. How 
 determined. 
 
 Privilege not 
 to exempt 
 from juris- 
 diction. 
 
 8. In a summary cause the sheriff shall order such procedure 
 as he thinks requisite, and (without a record of the evidence, unless 
 on the motion of either party made before the examination of 
 witnesses is begun the sheriff shall order that the evidence be 
 recorded) shall dispose of the cause without delay by interlocutor 
 containing findings in fact and in law. Where the evidence has been 
 recorded the judgment of the sheriff-substitute upon fact and law 
 may in ordinary form be brought under review of the sheriff, but 
 where the evidence has not been recorded, the findings in law only 
 shall be subject to review. 
 
 The alterations made by the 1913 Act upon this clause are (a) the 
 insertion of the words "made before the examination of witnesses 
 is begun "; and (6) the omission of the 1907 special Court of Session 
 Appeal provision, which has been superseded by the general appeal 
 provision of section 28. 
 
 9. Section 9 of the 1907 Act has been repealed by the 1913 Act. 
 
 10. No person shall be exempt from the jurisdiction of the 
 sheriff court on account of privilege by reason of being a member 
 of the College of Justice.
 
 SHERIFF COURTS ACTS, 1907-1913. 647 
 
 Sheriffs. 
 
 11. The right of appointing to the salaried offices of sheriff and Sec. 11. 
 
 salaried sheriff-substitute shall be vested in His Majesty, and Bhall Appointment 
 
 be exercised on the recommendation of the Secretary for Scotland. ' ' 
 
 and Balaned 
 Bheriffs-Bub- 
 
 12. Every person appointed to the office of sheriff shall be an s1 
 
 advocate of five years' standing at least or, if not an advocate, a Qualifii 
 
 J „ , . , benff 
 
 sheriff-substitute of five years standing at least; and every person an d salaried 
 
 appointed to the office of salaried sheriff-substitute shall be an sheriff- 
 
 .,.. -f,TA substitute. 
 
 advocate, or a law agent wit Inn the meaning ol the Law Agents 
 
 (Scotland) Act, 1873: Provided always that such advocate or law j! 6 ^ 37Vlct ' 
 
 agent shall be of not less than live years' standing in his profession. 
 
 13. It shall be lawful for the Secretary for Scotland, upon a Removal 
 report prepared at his instance by the Lord President of the Court from office ol 
 of Session and the Lord Justice Clerk for the time being, declaring salaried 
 that a sheriff in Scotland is by reason of inability, neglect of duty, sheriff-sub- 
 or misbehaviour unfit for his office, to issue an order for his removal 
 
 from office : Provided always that such order shall lie before both 
 Houses of Parliament for a period of four consecutive weeks while 
 Parliament is sitting, and, if either House of Parliament within that 
 period resolve that such order ought not to take effect, the same shall 
 be of no effect, but otherwise shall come into operation at the 
 expiration of the said period. In this paragraph " sheriff " does not 
 include " sheriff-substitute." 
 
 A salaried sheriff-substitute shall be immoveable from his office 
 by the Secretary for Scotland for inability or misbehaviour upon the 
 report of the Lord President of the Court of Session and the Lord 
 Justice Clerk for the time being. 
 
 14. It shall be lawful to grant to any sheriff or sheriff-substitute Salaries of 
 ",.,,, ill sheriffs ami 
 
 such salary as to the .Treasury may seem meet, and every such salary gh e riffs-sub- 
 
 shall be paid by four equal quarterly instalments, and shall be stitute. 
 charged upon and be payable out of the Consolidated Fund. 
 
 15. It shall be lawful for the Secretary for Scotland, on an Leave of 
 application made by or on behalf of any sheriff for leave of absence *£ff]« e l " 
 on account of temporary illness or other reasonable cause, to grant 
 
 such leave of absence for such period as he shall deem proper, and 
 to appoint some other person who shall be a sheriff of some other 
 sheriffdom, or an advocate of not less than five years' standing, to 
 act as interim sheriff in the place and during the absence of such 
 sheriff and on such interim appointment being made to tix what
 
 648 
 
 APPENDIX. 
 
 Sec. 15. proportion of the salary of the sheriff shall be paid to the interim 
 sheriff, and to certify the same in writing, and such certificate when 
 presented in Exchequer to the King's and Lord Treasurer's Remem- 
 brancer shall be sufficient warrant for him for payment to such 
 interim sheriff of the proportion of the sheriff's salary therein 
 mentioned. A sheriff appointed to be interim sheriff under this 
 section shall not by accepting such interim appointment vacate his 
 office as sheriff. An interim sheriff appointed under this section 
 shall have and exercise all the powers and privileges and perform all 
 the duties of the sheriff, and his acts, orders, and judgments shall 
 have the same force and effect as if done, made, or pronounced by 
 the sheriff. In this section " sheriff " does not include sheriff- 
 substitute. 
 
 I.' ive of 
 absence to 
 salaried 
 sheriff-sub- 
 stitute. 
 
 16. In the event of any salaried sheriff-substitute, by reason of 
 ill-health, being temporarily unable to discharge the duties of his 
 office, it shall be lawful for the Secretary for Scotland on application 
 being made to him by or on behalf of such sheriff-substitute to appoint 
 a person qualified to fill the office of sheriff-substitute to act ad 
 interim in the place and during the absence of such sheriff -substitute, 
 and on such interim appointment being made the Treasury may, on 
 the recommendation of the Secretary for Scotland, allow such interim 
 sheriff-substitute such remuneration as they think fit out of monies 
 to be provided by Parliament. 
 
 Honorary 
 sheriff- 
 substitute. 
 
 17. The sheriff may by writing under his hand appoint such 
 persons as he thinks proper to hold the office of honorary sheriff- 
 substitute within his sheriffdom during his pleasure, and for whom 
 he shall be answerable. An honorary sheriff -substitute, during the 
 subsistence of his commission, shall be entitled to exercise the powers 
 and duties appertaining to the office of sheriff-substitute. An 
 honorary sheriff-substitute shall hold office, notwithstanding the 
 death, resignation, or removal of the sheriff, until his commission 
 shall be recalled by a succeeding sheriff. In this section " sheriff " 
 does not include sheriff -substitute. 
 
 Courts to be 
 held by 
 sheriffs in 
 their sheriff- 
 doms. 
 
 18. Every sheriff shall, unless prevented by indisposition or other 
 unavoidable cause, hold annually in his sheriffdom courts for the 
 discharge of the judicial business of the sheriffdom ; and such courts 
 shall continue until the causes ready for trial or hearing when such 
 courts commence shall be disposed of ; and each sheriff shall give due 
 notice of the times and places of such courts ; and, unless otherwise 
 prescribed, each sheriff shall, once in the year, go on the small debt 
 circuit, in use to be held by the sheriff-substitute, and shall on such
 
 SHERIFF COURTS ACTS L907-1913. 649 
 
 occasions, in addition to holding the small debt court, despatch as Sec. 18. 
 much of the ordinary business as may be ready for adjudication, or 
 as time maj permit j and each sheriff shall annually, within ten days 
 after the twelfth day of November, mala- a return to the Secretary 
 for Scotland of the number of courts and sittings held by him, and 
 of the periods of holding each such court, in the immediately pre- 
 ceding year, stating the cause of absence in case the courts herein- 
 before directed shall not have been held by him in terms of this 
 Act, provided that the above provisions shall not extend to the 
 sheriffs of the Lothians and Peebles and of Lanarkshire : Provided 
 always that it shall be lawful for the Secretary for Scotland to pre- 
 scribe from time to time the number of courts to be held by the several 
 sheriffs and the times and places for holding such courts, and also 
 from time to time to prescribe the duties of the office of sheriff which 
 such sheriffs respectively are required to perform personally. In 
 this section " sheriff " does not include sheriff-substitute. 
 
 19. It shall be lawful for the Secretary for Scotland from time Secretary for 
 
 to time to prescribe the number of salaried sheriffs-substitute of the Scotland to 
 
 several sheriffdoms, and the places at which such salaried sheriffs- number 
 
 substitute respectively are required generally to reside and to attend duties, and 
 
 r6siclencc of 
 for the performance of their duties, and the duties to be performed salaried 
 
 by such sheriffs-substitute; and it shall also be lawful for the Secre- shennV 
 tary for Scotland, if he shall think fit, to direct that the sheriff- 
 substitute of one county shall perform the duties of sheriff-substitute 
 in an adjacent county ; and any such direction shall be equivalent in 
 all respects to a commission to act in such adjacent county in favour 
 of the sheriff-substitute so directed ; and no salaried sheriff-substitute 
 shall be absent from the sheriffdom for more than six weeks in any 
 year nor for more than two weeks at any one time nor so as to 
 interfere with the regular sittings of his court, without the special 
 consent in writing of the sheriff, who shall be bound, in the event of 
 his giving such consent, either to attend personally during the absence 
 of such substitute, or to appoint another person qualified as in section 
 twelve hereof to act as substitute in his stead. 
 
 The 1913 Act omits from the 1907 Act list of matters which may be 
 prescribed by the Secretary for Scotland, the fixing of times and 
 places for holding Courts. 
 
 20. It shall be lawful for the Treasury, upon the recommendation Annuities to 
 of the Secretary for Scotland, to grant an annuity payable in like 8heriffa and 
 manner as the salaries to any person who has held. QOW holds, or pheritTs- 
 may hereafter hold the office of sheriff or salaried sheriff substitute substitute. 
 whose period of service (notwithstanding that such service may not 
 
 have been continuous and may have been in different sheriffdoms and
 
 650 
 
 APPENDIX. 
 
 Sec. 20. 
 
 17 & 18 Vict. 
 0. '.14. 
 
 may have been partly as sheriff-substitute and partly as sheriff) has 
 been not less than ten years. Provided always that such annuity 
 shall not exceed one-third of the salary payable to such person in 
 case the period of his service shall have been not less than ten years, 
 and shall not exceed two-thirds of such salary in case the period of 
 service shall have been not less than fifteen years, and shall not 
 exceed three-fourths of such salary in case the period of service shall 
 have been not less than twenty years or upwards : Provided also that 
 (except as hereinafter provided) no such annuity shall be granted to 
 any sheriff or sheriff-substitute unless the periods of his actual service 
 shall, when taken together, extend to one or other of the periods of 
 service before mentioned, and that in computing the amount of said 
 annuity the emoluments drawn by him on an average of the five 
 preceding years shall be held to constitute his salary : Provided 
 also that no such annuity shall be granted unless such sheriff or 
 sheriff-substitute shall have duly fulfilled the duties of his office 
 during one of the peiiods before mentioned, and is from age or 
 permanent infirmity disabled from the due exercise of his office, which 
 facts shall be certified by the Lord President, the Lord Justice Clerk, 
 and the Lord Advocate for the time being as having been established 
 to their satisfaction : Provided also that if a sheriff is removed under 
 section thirteen hereof before he has completed ten years' service on 
 the ground that he is by reason of inability unfit for his office, it shall 
 be lawful for the Treasury to grant him an annuity of such amount 
 and for such period as they shall consider just in all the circumstances, 
 but in no case exceeding three-tenths of the salary payable to such 
 sheriff, and any such annuity shall be charged upon and payable out 
 of the same fund and in the same manner as annuities to sheriffs are 
 paid and charged under the first section of the Public Revenue and 
 Consolidated Fund Charges Act, 185L In the last proviso of this 
 section " sheriff" shall not include sheriff-substitute. 
 
 Disqualifi- 
 cations and 
 disabilities 
 of sheriffs 
 ami salaried 
 sheriffs-sub- 
 stitute. 
 
 21. It shall not be lawful for a sheriff to advise, plead, or 
 otherwise act as an advocate before any of the King's Courts at 
 Edinburgh, or at the Circuit Court, in any cause civil or criminal 
 arising within or coming from his sheriffdom ; and no sheriff or salaried 
 sheriff-substitute shall be steward, chamberlain, factor, agent, or 
 commissioner to any subject whatsoever, or shall exercise, or act 
 in the employment, service, or office of such steward, chamberlain, 
 factor, agent, or commissioner; and no sheriff or salaried sheriff- 
 substitute shall be capable of being elected or of sitting or voting 
 as a member of the House of Commons, nor shall he be entitled to 
 vote at any election for any member of Parliament held within his 
 sheriffdom ; nor shall he act directly or indirectly as an agent for 
 any candidate in any matter connected with, or preparatory to, any
 
 SHERIFF COURTS ACTS, L907-1913. 653 
 
 election occurring within his jurisdiction ; and it shall not he lawful Sec. 21. 
 
 for a salaried sheriff-substitute to engage in legal, banking, or other 
 
 private practice or business, or to act directly or indirectly as a 
 
 procurator before any court, or to be in partnership with any person 
 
 so engaged or acting, nor shall such sheriff-substitute he appointed 
 
 to any office, except such office as shall be by statute attached to the 
 
 office of sheriff-substitute. 
 
 Any sheriff or salaried sheriff-substitute acting contrary to the 
 provisions of this section shall be guilty of misbehaviour within the 
 meaning of section thirteen of this Act. 
 
 The 1913 Act slightly varied the phraseology of this section. 
 
 Procurators-Fiscal. 
 
 22. From and after the passing of this Act the right of appoint- Appointment 
 ing to the office of procurator-fiscal shall be vested in the Lord g f 8 ^ curator " 
 Advocate. 
 
 23. No person holding the office of procurator-fiscal at the passing Removal of 
 of this Act, and receiving salary on that account, and no person procurator- 
 who may be hereafter appointed to the office of procurator-fiscal, 
 
 shall be removable from office, except by the Secretary for Scotland, 
 for inability or misbehaviour, upon a report by the Lord President 
 of the Court of Session and the Lord Justice Clerk for the time being. 
 
 24. A procurator-fiscal may, with the consent of the Lord Procurator- 
 Advocate, grant a deputation to one or more fit persons, for whose ^ ac ^v? ay 
 actings he shall be responsible, to sign writs, to appear in court, and depute. 
 
 to conduct prosecutions and inquiries in his name and on his behalf. 
 In the event of a vacancy in the office of procurator-fiscal any depute 
 or deputes so appointed shall have and discharge all the powers, 
 privileges, and duties of a procurator-fiscal until such vacancy is 
 filled up. 
 
 Sessions. 
 
 25. In each sheriff court there shall be held two sessions in the Sessions. 
 year, a winter and a summer session. The winter session shall 
 extend from the first ordinary court day in October to the 1 
 ordinary court day in March. The sittings of the court may. at 
 Christmas time, be suspended for a period not exceeding fifteen days. 
 
 The summer session shall extend from the first ordinary court day 
 in May to the last ordinary court day in July.
 
 «I.-L> 
 
 A1TKXDIX. 
 
 Sec. 26. 
 
 Vacation 
 
 Courts. 
 
 26. The sheriff shall, before the termination of each winter 
 session, appoint at least one court day during the spring vacation 
 for the despatch of civil business, and before the termination of each 
 summer session he shall in like manner appoint at least two court 
 days during the autumn vacation for the same purpose. Any cause 
 may proceed during vacation as during session, and in all causes 
 interlocutors may competently be pronounced during vacation. 
 
 Appeal to 
 sheriff. 
 
 Appeal to 
 Court of 
 Session. 
 
 Appeals. 
 
 27. Subject to the provisions of this Act an appeal to the 
 sheriff shall be competent against all final judgments of the sheriff- 
 substitute and also against interlocutors — 
 
 (a) Granting or refusing interdict, interim or final ; 
 
 (b) Granting interim decree for payment of money other than 
 
 a decree for expenses, or making an order ad factum 
 pra3standum ; 
 
 (c) Sisting an action ; 
 
 (d) Allowing or refusing or limiting the mode of proof not 
 
 being an interlocutor fixing a diet for jury trial ; 
 
 (e) Refusing a reponing note; or 
 
 (f) Against which the sheriff-substitute either ex proprio motu 
 
 or on the motion of any party grants leave to appeal; 
 
 The only alteration made by the 1913 Act is to include an 
 interlocutor refusing to repone. 
 
 Provided always that notwithstanding the death, resignation, 
 
 or removal of a sheriff, appeals may be taken from the judgment 
 
 of the sheriff-substitute, which appeals shall be heard by the 
 
 succeeding sheriff when he shall enter upon office. It shall be 
 
 competent for the sheriff when the action is before him on appeal 
 
 on any point to open the record ex proprio motu if the record shall 
 
 appear to him not to have been properly made up or to allow further 
 
 proof 
 
 The only alteration made by the 1913 Act upon this clause is the 
 addition of power to the Sheriff on appeal to open up the record 
 or to allow further proof, a power conferred by the Act of 1876, 
 which had per incuriam been omitted from the 1907 Act. 
 
 28. — (1) Subject to the provisions of this Act, it shall be 
 competent to appeal to the Court of Session against a judgment 
 either of a sheriff or of a sheriff-substitute, if the interlocutor 
 appealed against is a final judgment; or is an interlocutor — 
 
 (a) Granting interim decree for payment of money other than 
 a decree for expenses ; or
 
 SIIKIIIIT COI'IJTS ACTS, 1907-1913. 653 
 
 (b) Sisting the action ; or Sec. 28. 
 
 (c) Refusing a reponing note ; or 
 
 (d) Against which the sheriff or sheriff-substitute, either ex 
 
 proprio motu or on the motion of any party, grants leave 
 to appeal. Provided that no appeal shall be competent 
 where the cause does not exceed £50 in value exclusive 
 of interest and expenses, or is being tried as a summary 
 cause, unless tlic slierilt', after final judgment by liim on an 
 appeal on the motion of either party made within seven 
 days of the date of the final interlocutor, certifies the cause 
 as suitable for appeal to the Court of Session. 
 
 (2) Nothing in this section nor in section 27 of this Act 
 contained shall affect any right of appeal cr exclusion of such right 
 provided by any Act of Parliament in force for the time being. 
 
 This section supplants section 28 of the 1907 Act. The difference is 
 that where the value of the cause does not exceed £50, appeal is 
 excluded, unless the Sheriff certifies the case as suitable for appeal 
 to the Court of Session. It also includes an interlocutor refusing to 
 repone. 
 
 29. An appeal shall be effectual to submit to review the whole Effect of 
 of the interlocutors pronounced in the cause, and shall be available appeal. 
 to and may be insisted in by all other parties in the cause notwith- 
 standing they may not have noted separate appeals. An appeal 
 
 shall not prevent immediate execution of a warrant of sequestration 
 for rent, or of warrants to take inventories, or place effects in 
 custody ad interim, or warrants for interim preservation, and an 
 interim interdict, although appealed against, shall be binding till 
 recalled. 
 
 Removal of Cause to Court of Session for Jury Trial. 
 
 30. In cases originating in the sheriff court (other than claims Removal of 
 by employees against employers in respect of injury caused by cause f° r 
 accident arising out of and in the course of their employment and 
 concluding for damages under the Employers Liability Act, 1880, 
 
 or at common law, or alternatively at common law or under the 
 
 Employers Liability Act, 1880), where the claim is in amount or 4:: & 14 Viet. 
 
 value above fifty pounds, and an order has been pronounced allowing c - 4 - > - 
 
 proof (other than an order for proof to lie in retentis or for recovery 
 
 of documents) it shall, within six days thereafter, be competent to 
 
 either of the parties, who may conceive that the cause ought to be 
 
 tried by jury, to require the cause to be remitted to the Court of 
 
 Session for that purpose where it shall be so tried : Provided, 
 
 however, that the Court of Session shall, if it thinks the case 
 
 unsuitable for jury trial, have power to remit the case back to the
 
 654 
 
 APPENDIX. 
 
 Sec. 30. sheriff, or to remit it to a Lord Ordinary, or to send it for proof 
 before a Judge of the Division before whom the cause depends. 
 
 Jury trial in 
 sheriff court. 
 
 Jury Trial in Sheriff Court. 
 
 31. In any action raised in the sheriff court by an employee 
 against his employer concluding for damages under the Employers 
 Liability Act, 1880, or at common law, or alternatively under that 
 Act or at common law in respect of injury caused by accident arising 
 out of and in the course of his employment, where the claim exceeds 
 fifty pounds, either party may so soon as proof has been allowed, or 
 within six days thereafter, require that the cause shall be tried 
 before a jury, in which case the sheriff shall appoint the action to 
 be tried before a jury of seven persons. The verdict of the jury 
 shall be applied in an interlocutor by the sheriff, which shall be 
 the final judgment in the cause, and may, subject to the provisions 
 of this Act, be appealed to either division of the Court of Session 
 but that only upon one or more of the following grounds — 
 
 (1) That the verdict has been erroneously applied by the sheriff; 
 
 (2) That the verdict is contrary to the evidence ; 
 
 (3) That the sheriff had in the course of the trial unduly refused 
 
 or admitted evidence or misdirected the jury ; 
 
 (4) That an award of damages is inadequate or is excessive. 
 
 Upon such appeal the court may refuse the appeal or may find 
 that the verdict was erroneously applied, and give judgment 
 accordingly, or may set aside the verdict and order a new trial, 
 provided that if the judges are equally divided in opinion the verdict 
 shall stand. 
 
 The only alteration made by the 1913 Act on these sections, 30 and 31, 
 of the 1907 Act, is to include actions laid at common law only. 
 
 Sheriff to 
 state ques- 
 tions for jury. 
 
 32. Where jury trial has been ordered the sheriff shall issue 
 an interlocutor fixing a time and place for the trial, being not 
 sooner than fourteen days from the date of his interlocutor ; and at 
 the trial he may, or if required by either party shall, after the 
 conclusion of the evidence, propone to the jury question or questions 
 of fact to be answered by them, and the jury shall in their verdict 
 give specific answers to such question or questions. 
 
 This section (which is section 6 of the 1913 Act) supplants section 32 
 of the 1907 Act. The difference is that the questions are to be put 
 after the evidence is concluded, instead of at the commencement 
 of the trial.
 
 SHERIFF COURTS A<T.s. L907-1913. 655 
 
 33. Where jury trial has been ordered the party moving for Sec. 33. 
 it shall, on each clay the trial proceeds, before the proceedings Remunera- 
 commence, deposit with the sheriff clerk the sum of three pounds tion of jurora. 
 ten shillings, which deposit Bhall form part of the expenses of tin- 
 cause; failing any such deposit being made, the sheriff may dismiss 
 
 the cause. Out of said fund the sheriff-clerk shall pay to each juror 
 a fee of ten shillings for each day on which he is empanelled. When 
 a jury trial is not proceeded with, said deposit shall be returned 
 to tho depositor. 
 
 Removings. 
 
 34. Where lands exceeding two acres in extent are held under a Removings. 
 probative lease specifying a term of endurance, and whether such 
 
 lease contains an obligation upon the tenant to remove without 
 warning or not, such lease, or an extract thereof from the books 
 of any court of record shall have the same force and effect as an 
 extract decree of removing obtained in an ordinary action at the 
 instance of the lessor, or any one in his right, against the lessee or 
 any party in possession, and such lease or extract shall along with 
 authority in writing signed by the lessor or any one in his right 
 or by his factor or law agent be sufficient warrant to any sheriff 
 officer or messenger-at-arms of the sheriffdom within which such 
 lands or heritages are situated to eject such party in possession, 
 his family, sub-tenants, cottars, and dependants, with their goods, 
 gear and effects, at the expiry of the term or terms of endurance 
 of the lease : Provided that previous notice in writing to remove 
 shall have been given — 
 
 (a) When the lease is for three years and upwards not less than 
 
 one year and not more than two years before the 
 termination of the lease ; and 
 
 (b) In the case of leases from year to year (including lands 
 
 occupied by tacit relocation) or for any other period less 
 than three years, not less than six months before the 
 termination of the lease (or where there is a separate ish 
 as regards land and houses or otherwise before that ish 
 which is first in date) : 
 
 Provided that if such written notice as aforesaid shall not be given 
 
 the lease shall be held to be renewed by tacit relocation for another 
 
 year, and thereafter from year to year : Provided further that 
 
 nothing contained in this section shall affect the right of the landlord 
 
 to remove a tenant who has been sequestrated under the Bankruptcy ig & _>n Vict, 
 
 (Scotland) Act, 1856, or against whom a decree of cessio has been c - ''■'• 
 
 pronounced under the Debtors (Scotland) Act, 1880, or who by failure 4: \f 4 44 Vict-
 
 656 
 
 APPENDIX. 
 
 Sec. 34. 
 
 Letter of 
 removal. 
 
 Notice to 
 remove. 
 
 to pay rent lias inclined any irritancy of his lease or other liability 
 to removal : Provided further that removal or ejectment in virtue 
 of this section shall not be competent after six weeks from the date 
 of the ish last in date : Provided further that nothing herein contained 
 Bhall be construed to prevent proceedings under any lease in common 
 form; and that the foregoing provisions as to notice shall not apply 
 to any stipulations in a lease entitling the landlord to resume land 
 for building, planting, feuing, or other purposes or to subjects let 
 for any period less than a year. 
 
 35. Where any tenant in possession of any lands exceeding 
 two acres in extent (whether with or without a written lease) shall, 
 either at the date of entering upon the lease or at any other time, 
 have granted a letter of removal, either holograph or attested by 
 one witness, such letter of removal shall have the same force and 
 effect as an extract decree of removing, and shall be a sufficient 
 warrant for ejection to the like effect as is provided in regard to a 
 lease or extract thereof, and shall be operative against the granter 
 of such letter of removal or any party in his right within the same 
 time and in the same manner after the like previous notice to 
 remove : Provided always that where such letter is dated and signed 
 within twelve months before the date of removal or before the first 
 ish, if there be more than one ish, it shall not be necessary that 
 any notice of any kind shall be given by either party to the other. 
 
 36. Where lands exceeding two acres in extent are occupied 
 by a tenant without any written lease, and the tenant has given 
 to the proprietor or his agent no letter of removal, the lease shall 
 terminate on written notice being given to the tenant by or on 
 behalf of the proprietor, or to the proprietor by or on behalf of 
 the tenant not less than six months before the determination of 
 the tenancy, and such notice shall entitle the proprietor, in the. 
 event of the tenant failing to remove, to apply for and obtain a 
 summary warrant of ejection against the tenant and every one. 
 deriving right from him. 
 
 Notice of 
 termination 
 of tenancy. 
 
 37. In all cases where houses, with or without land attached, 
 not exceeding two acres in extent, lands not exceeding two acres 
 in extent let without houses, mills, fishings, shootings, and all 
 other heritable subjects (excepting land exceeding two acres in extent) 
 are let for a year or more, notice of termination of tenancy shall 
 be given in writing to the tenant by or on behalf of the proprietor 
 or to the proprietor by or on behalf of the tenant : Provided always 
 that notice under this section shall not warrant summary ejection
 
 SHERIFF COURTS ACTS, L907-1913. 657 
 
 from the subjects let to a tenant, but Buch notice, whether given Sec. 37. 
 to or by or on behalf of the tenant, shall entitle the proprietor to 
 apply to the sheriff for a warrant for summary ejection in common 
 form against the tenant and every one deriving right from him : 
 Provided further that the notice provided for by this section shall 
 be given at least forty days before the fifteenth day of May when 
 the termination of the tenancy is the term of Whitsunday, and at 
 least forty days before the eleventh day of November when the 
 termination of the tenancy is the term of Martinmas. 
 
 Summary Removings. 
 
 > 
 
 38. Where houses or other heritable subjects are let for a shorter Summary 
 
 period than a year, any person by law authorised may present remoym fr 
 to the sheriff a summary application for removing, and a decree 
 pronounced in such summary cause shall have the full force and effect 
 of a decree of removing and warrant of ejection. Where such a let is 
 for a period not exceeding four months, notice of removal therefrom 
 shall, in the absence of express stipulation, be given as many days 
 before the ish as shall be equivalent to at least one-third of the full 
 period of the duration of the let; and wdiere the let exceeds four 
 months, notice of removal shall, in the absence of express stipulation, 
 be given at least forty days before the expiry of the said period. 
 
 Procedure Rules. 
 
 39. Subject to the provisions of any Act of Parliament in Procedure 
 force after the passing of this Act, the procedure in all civil causes rules - 
 shall be conform to the rules of procedure set forth in the First 
 Schedule hereto annexed. Such rides shall be construed and have 
 
 effect as part of this Act. 
 
 40. The Court of Session may from time to time, by Act of Court of 
 Sederunt, make such regulations not inconsistent with the provisions i V , qi i a te 
 
 of this Act as may be necessary for carrying into effect the purposes feesj 
 thereof for regulating the practice of the sheriff courts (including 
 diligence and procedure under the Small Debt Acts); and for 
 regulating the fees of agents, officers, shorthand writers, and others, 
 and, with the concurrence of the Treasury, for regulating the fees 
 of court; and for altering, amending, or adding to the rules of 
 procedure in the First Schedule hereto: Provided that every such 
 Act of Sederunt shall, within one week from the date thereof, be 
 transmitted by the Lord President of the Court of Session to the 
 Secretary for Scotland, in order that it may be laid before the Houses 
 42
 
 658 
 
 APPENDIX. 
 
 Sec. 40. of Parliament ; and, if either of the Houses of Parliament shall 
 within thirty-six days after it has been laid before them resolve 
 that the whole or any part of such Act of Sederunt ought not to 
 continue in force, the whole or such part thereof as shall be included 
 in such resolution shall from and after the date of the passing of 6uch 
 resolution cease to be binding. 
 
 The 1913 Act omits from this section the 1907 Proviso that proposed Acts 
 of Sederunt are to be advertised in the Edinburgh Gazette and in 
 two other Scotch Newspapers. 
 
 Meetings of 
 
 sheriffs. 
 
 41. For the purpose of preserving uniformity in the proceedings 
 of sheriff courts, the sheriffs shall meet in Edinburgh once at least 
 in each year, and may then, or at any other meeting, formulate for 
 the consideration of the Court of Session any regulations which they 
 propose should be enacted by Act of Sederunt, a printed draft of 
 the same having been exhibited in each sheriff court for the space 
 of fourteen days before the same is submitted to the court : Provided 
 also that the necessary expenses of such meetings of sheriffs and of 
 preparing and printing such propositions shall be allowed in the 
 annual accounts in Exchequer of such one of the sheriffs as may from 
 time to time be appointed by them to be their convener in the like 
 manner as other ordinary expenses of sheriffs are allowed. In this 
 section " sheriff " does not include " sheriff-substitute." 
 
 Small Debt Acts. 
 
 Extension of 
 small debt 
 jurisdiction 
 to £20. 
 
 42. The provisions of the Small Debt Acts shall extend and 
 apply to all causes competent thereunder where the value of the 
 cause does not exceed twenty pounds, and wherever the words "eight 
 pounds six shillings and eightpence " or the words " twelve pounds " 
 occur in these Acts they shall be read and construed as if for these 
 words there were substituted the words " twenty pounds." 
 
 Small debt 43. The provisions of the Small Debt Acts for sequestration 
 
 sequestration £ or ren {. g^u extend to all sequestrations applied for currente termino 
 or in security. 
 
 Parties may 
 
 appear by 
 
 agents in 
 
 small debt 
 
 court. 
 
 52 & 53 Vict, 
 
 c. 26. 
 
 44. Section eight of the Small Debt Amendment (Scotland) Act, 
 1889, is hereby repealed, and in lieu thereof it is enacted that in 
 any cause brought under the Small Debt Acts any party may 
 appear by or along with an agent, and the sheriff may allow and 
 include in the expenses of the cause a fee to such agent.
 
 SHERIFF COURTS ACTS, L907-1913. &59 
 
 45. The provisions of section three (except Subsections (d), Sec. 45. 
 (h), (i), (k), (/), (m), and (/>)), section four, subsection (2) of section [.,,„., ,] ure 
 five, so far as relating to claims for aliment, section six (except niI, -s apphe- 
 subsection (e.)), section forty-nine and section fifty-one hereof, and debt causes . 
 the rules ten, eleven, twelve, thirteen, fourteen, fifteen, seventeen, 
 nineteen, twenty-one, twenty-six, fifty, fifty-five, sixty, sixty-three, 
 seventy, seventy-nine, eighty, one hundred and twenty-six, one 
 hundred and twenty-seven, one hundred and twenty-eight, one 
 hundred and twenty-nine, one hundred and fifty-one, in the First 
 Schedule hereto shall, so far as appropriate, apply to causes under 
 
 the Small Debt Acts. 
 
 46. The provisions of sections ten and eleven of the Debtors Sections 10 
 
 (Scotland) Act, 1838, shall not apply to decrees of delivery under the JJ 1 ^ 11 of the 
 
 Small Debt Amendment (Scotland) Act, 1889, but such decrees shall (Scotland) 
 
 be enforceable by imprisonment under the warrant for execution Act j 1838 ' tc ?, 
 . -, apply to small 
 
 contained in Schedule B of the Small Debt Amendment (Scotland) debt causes. 
 
 Act, 1889. I & 2 Vict. 
 
 c. 114. 
 
 47. It shall be lawful to issue a second or further extract of any Second 
 decree under the Small Debt Acts, in the form as nearly as may be extract of 
 of Schedule B or C of the Small Debt Amendment (Scotland) Act, decree com- 
 1889, which extract may be written upon a separate paper, and shall peteut. 
 have the same force and effect in all respects as the first extract. 
 
 48. If the sheriff is of opinion that the importance of the ques- Small debt 
 
 tions raised in any cause brought under the Small Debt Acts warrants cause may 
 
 * . be remitted 
 
 that course, he may at any stage remit the cause to his ordinary to ordinary 
 
 court roll either on cause shown or ex proprio motu, in which case court roll. 
 
 the cause shall proceed in all respects (including appeal) as if it had 
 
 been originally raised in the ordinary court. 
 
 Postal Charge. 
 
 49. Where a charge is necessary upon a decree for payment of p osta i 
 money granted in the small debt court, and the place of execution of oha 
 the charge is more than tw r elve miles distant from the seat of the 
 court where such decree was granted, a charge may be given by post 
 
 in the manner prescribed by the Citation Amendment (Scotland) Act. 15 8 16 Vict 
 1882. "■ 
 
 Summary Applications. 
 
 50. In summary applications (where a hearing is necessary) the summary 
 sheriff shall appoint the application to be heard at a diet to be fixed applications.
 
 GGO APPENDIX. 
 
 Sec. 50. l j y hi m > an d at that or any subsequent diet (without record of evidence 
 unless the sheriff shall order a record) shall summarily dispose of 
 the matter and give his judgment in writing : Provided that wherever 
 .SO & 40 Vict, in any Act of Parliament an application is directed to be heard, 
 °- TO* tried, and determined summarily or in the manner provided by section 
 
 fifty-two of the Sheriff Courts (Scotland) Act, 1876, such direction 
 shall be read and construed as if it referred to this section of this 
 Act : Provided also that nothing contained in this Act shall affect 
 any right of appeal provided by any Act of Parliament under which 
 a summary application is brought. 
 
 The Poor's Roll. 
 
 Poor's roll. 51. Where parties are unable from poverty to pursue or defend 
 
 an action, it shall be lawful for the sheriff to admit such parties to 
 the benefit of the poor's roll if, upon the report of the procurators 
 for the poor, he is satisfied that such person is entitled thereto. 
 
 Repeal. 
 
 Repeal of 52. The enactments mentioned in the Second Schedule hereto 
 
 statutes. annexed are hereby repealed to the extent mentioned in the third 
 
 column of that Schedule, and all laws, statutes, Acts of Sederunt, 
 orders and usages now in force so far as the same are inconsistent 
 with the provisions of this Act, are also hereby repealed. But 
 provided that all actions pending at the date of the commencement 
 of this Act shall nevertheless proceed to final determination in all 
 respects as if this Act had not been passed.
 
 SHERIFF COURTS A.CTS, L907-1913. 661 
 
 SCIIKDULES. 
 FIRST SCHEDULE. Sched. I. 
 
 Sections 39, 
 40, aud 45. 
 
 Rules for Regulating Procedure in the Ordinary Court. 
 Forms of Process. 
 
 1. Subject to the provisions of the Titles to Land Consolidation Initial writ. 
 (Scotland) Act, 1868, and the Conveyancing and Land Transfer 
 (Scotland) Act, 1874, as regards service of heirs and completion of 
 
 title, all actions shall be commenced by writ as nearly as may be in 
 the Form A hereto annexed. 
 
 [Rule 2 of the 1907 Act has been repealed by the 1913 Act.] 
 
 2. There shall be annexed to the initial writ a statement (in the 
 form of an articulate condescendence) of the facts which form the 
 ground of action, and a note of the pursuer's pleas in law, which con- 
 descendence and note of pleas in law shall be held to constitute part of 
 the initial writ. 
 
 This is a new Rule added by 1913 Act, consequent upon the form of 
 Initial Writ being altered in Form A. 
 
 3. The writ shall be signed by the pursuer or complainer or by Writ to be 
 his agent, and the name and address of pursuer's agent (if any) shall sl S ne "- 
 
 be upon the back of every service copy. 
 
 4. The warrant of citation shall be as nearly as may be — Form of first 
 
 • warrant. 
 
 (a) In summary causes and summary removings, and also in 
 
 summary applications when citation is necessary and in 
 cases under the Workmen's Compensation Act, in the 
 Form B hereto annexed : 
 
 (b) In all other causes, in the Form C hereto annexed. 
 
 Inducle. 
 
 5. Lotions shall proceed upon seven days' warning or inducise i ni \ Ul 
 when the defender is within Scotland, or fourteen days when he is in citation. 
 Orkney or Shetland or in any other island within Scotland or is furth 
 
 of Scotland. 
 
 G. The sheriff may shorten or may extend the inducing, but not Special 
 so as to be in any case less than forty-eight hours. induoue.
 
 662 
 
 APPENDIX. 
 
 Sched. I. 
 
 Signature of 
 warrants. 
 
 Mode of 
 citation. 
 
 Attestation 
 of officer's 
 execution of 
 citation. 
 
 Endorsation 
 of warrant by 
 sheriff-clerk 
 of defender's 
 residence not 
 necessary. 
 
 Citation. 
 
 7. Warrants may be signed by the sheriff-clerk, but any warrant 
 may be signed by the sheriff or sheriff-substitute, and must be so 
 signed if it contains an order for shortening or extending the induciae 
 or for interim interdict, sequestration, or other order not being an 
 order for citation or warrant to arrest. In actions against persons 
 furth of Scotland the warrant may authorise service edictally. 
 
 8. Citation may be in the Form D hereto annexed, and the form 
 of execution of citation, which shall be appended to or endorsed upon 
 the initial writ, may be in the Form E hereto annexed. 
 
 9. If a warrant is executed by an officer, one witness shall be 
 sufficient for the execution of citation and the execution shall be 
 signed by the officer and the witness, and shall specify whether the 
 citation was personal, or, if otherwise, the mode of citation. 
 
 10. Any warrant of citation or any warrant or precept of arrest- 
 ment proceeding upon a depending action or liquid document of debt 
 may in any competent manner be lawfully executed within the juris- 
 diction of any sheriff without indorsation by the sheriff-clerk of that 
 jurisdiction, and, if executed by an officer, may be so executed by an 
 officer of the court which granted the warrant or precept, or by an 
 officer of the jurisdiction within which it is to be executed. 
 
 11. Any individual or individuals, or any corporation or asso- 
 ciation, carrying on business under a firm or trading or descriptive 
 name may sue or be sued in such name without the addition of the 
 name or names of such individual or individuals or any of them, or 
 of any member or official of such corporation or association, and any 
 extract of a decree pronounced in the sheriff court, or of a decree 
 proceeding upon any deed, decree arbitral, bond, protest of a bill, 
 promissory note or banker's note, or upon any other obligation or 
 document on which execution may competently proceed, recorded in 
 the sheriff court books against such individual or individuals, or 
 against such corporation or association, under such firm, trading, 
 or descriptive name, shall be a valid warrant for diligence against 
 such corporation, association, or firm, and such individual or indi- 
 viduals. Citation in any action may be made at the principal place 
 where such business is carried on (including the place of business or 
 office of the clerk or secretary of any corporation or association) when 
 such place is within the jurisdiction of the sheriff court in which such 
 action is brought, or otherwise at any place of business or office at 
 which such business is carried on within the jurisdiction of such 
 sheriff court. 
 
 This re-casts and expands Rule 11 of the 1907 Act. The only new 
 provision is that a descriptive firm may now sue, as well as be 
 sued, under the descriptive name.
 
 SHERIFF COURTS ACTS, 1907-1913. 663 
 
 12. If it appear to the sheriff that there has been any irregu- Sched. I. 
 larity in service upon a defender who has not appeared, the sheriff <s erv i C e of 
 may authorise the pursuer or complainer to make service of new upon new. 
 
 such conditions as to the sheriff shall seem just. 
 
 13. A party who appears may not state any objection to the Defender 
 regularity of the service upon himself, and his appearance shall be blirrecl oWect- 
 deemed to remedy any defect in the service, unless where jurisdiction tog to 
 
 has been constituted by citation or by arrestment ad fundandum 
 jurisdictionem. 
 
 14. Service in ordinary form on a minor and on his father, as Citation of 
 curator-at-law, or upon a minor and his tutors and curators if known 
 
 to pursuer, or, if they are not known, upon the minor himself in 
 ordinary form, and his tutors and curators edictally, shall be good 
 and sufficient service on the minor for every purpose of law. 
 
 15. It shall be competent to execute edictally any warrant of Edictal 
 citation granted or charge on an extracted decree pronounced by a 
 sheriff against any person furth of Scotland, by delivery of a copy 
 thereof at the office of the keeper of edictal citations at Edinburgh 
 according to the mode established in regard to the execution 
 edictally of citations and charges on warrants of the Court of Session : 
 
 or by sending to such keeper in a registered post-letter a certified 
 copy of sucli warrant or charge, of which copy the keeper shall 
 acknowledge receipt. Every citation or charge so executed edictally 
 shall be recorded in the record of edictal citations in Edinburgh in a 
 separate record of edictal citations or charges against persons furth 
 of Scotland cited or charged upon warrants proceeding from any 
 sheriff court. Where the party cited or charged has a known 
 residence or place of business in England or Ireland a copy of the 
 writ and citation or of the decree and charge on fourteen days' 
 induciae shall be posted in a registered letter to the party at such 
 address, and the execution shall express that this has been done. The 
 6heriff-clerk shall in all warrants to cite persons furth of Scotland 
 insert a warrant to cite edictally, and along with the execution of 
 edictal citation pursuer's agent shall lodge a certificate of such postal 
 intimation and the post office registered letter receipt. 
 
 Custody of Process. 
 
 16. Every initial writ shall after tabling remain in the custody Custody of 
 
 of the sheriff-clerk, unless the sheriff shall granl a special order to process, 
 the contrary. A process may be borrowed only by an agent entitled 
 to practice in the jurisdiction, or by his duly authorised clerk, for 
 whom he shall be responsible. All remedies (including caption) 
 competent to enforce the return of a borrowed process may proceed
 
 664, APPENDIX. 
 
 Sched. I. on the wan-ant of the court from whose custody the process was 
 obtained, and that whether the borrower is or is not resident within 
 its jurisdiction. 
 
 The last sentence of this Rule was added by the 1913 Act. 
 
 Lost docu- 17. When any number of process is lost or destroyed, a copy 
 
 replaLdby thereof > authenticated in such manner as the sheriff may require, 
 copies. may be substituted, and shall, for the purposes of the action, be 
 
 equivalent to the original. 
 
 Interlocutor 18. In a defended action the pursuer shall lodge with the sheriff - 
 
 be^od^ed bv° c ^ er ^ principal and duplicate interlocutor sheets and a principal and 
 
 pursuer. borrowing inventory of process ; and the sheriff-clerk shall endorse 
 
 upon all pleadings the date when the same are lodged. The principal 
 
 interlocutor sheets and the borrowing inventory shall remain in the 
 
 custody of the sheriff-clerk. 
 
 Transfer op Causes. 
 
 Transfer of 19- Where an action in w r hich there are two or more defenders 
 
 cause to more has been brought in the court of the domicile of one of them, the 
 sheriffdom sheriff may transfer the cause to any other court which has jurisdic- 
 where several n on over an y f the defenders, if in his opinion it is expedient that 
 different this should be done, and an action so transferred shall proceed in 
 
 sheriffdoms. a n respects as if it had been originally brought in that court. 
 
 Sheriff on 20. The sheriff may upon sufficient cause, by interlocutor stating 
 
 cause shown j^ reagons r emit any cause to another sheriffdom, and such inter- 
 may remit to J . . 
 another locutor, when issued by a sheriff-substitute, shall by leave of the 
 
 sheriffdom. sheriff-substitute, and within seven days only, be subject to review 
 
 by the sheriff, but shall not be further subject to review. 
 
 Where plea 21. Where a plea of no jurisdiction is sustained, the sheriff may, 
 
 t °tate(l ^ ne tnm ^ Proper, and upon such conditions as to costs as he may 
 
 cause may be think fit, remit the cause to the sheriff before whom it appears to 
 
 remitted to j^ m ^ ou gj lt to h ave ^en brought, and it shall thereafter proceed 
 
 dom. in all respects as if it had been originally there brought. When 
 
 such remit is made by the sheriff-substitute, the interlocutor 
 
 remitting shall by leave of the sheriff-substitute and within seven 
 
 days only be subject to review by the sheriff but shall not be 
 
 further subject to review. 
 
 Appearance. 
 
 Notice of 22. If a defender intend to state a defence he shall (except in a 
 
 appearance, nummary cause), before the expiry of the induciae, exhibit to the
 
 SHERIFF COURTS ACTS, L907-1913. 665 
 
 sheriff-clerk the service copy of the writ and lodge with him a Sched. I. 
 notice of appearance in the following terms: — 
 
 [Place and date] — C. D., [design him] defender, intends to 
 
 defend the action against him [and others] at the instance of A. B. 
 
 ("design himj. 
 
 C. D.. Defender, 
 
 or X. Y. [add address], 
 
 Defender's Agent. 
 
 The 1913 Act added to this Rule the requirement to exhibit the service 
 copy writ to the Sheriff Clerk. 
 
 Undefended Causes. 
 
 23. If the defender does not lodge a notice of appearance or In undef end- 
 does not answer the sheriff may at any time, after the expiry of the J^g 8 ® be 
 inducise, upon a written craving being endorsed on the initial writ granted at 
 by the pursuer or his agent decern in terms of the crave of the g^^f 
 initial writ, and at the same time or thereafter for expenses as the inducise. 
 same may be certified by a note endorsed upon the initial writ by 
 the auditor of court, subject to any restriction so endorsed or set 
 forth in a minute by the pursuer or his agent. Provided that this 
 rule shall not apply to actions of separation and aliment, adherence 
 and aliment, or interim aliment, or to actions regulating the custody 
 of children. 
 
 This re-casts Rule 23 of the 1907 Act, The new Proviso at the end 
 was added by the 1913 Act. 
 
 24. The sheriff -clerk mav issue an extract of such decree after Extract of 
 <> .... , decree in 
 
 the expiry of seven days from the date of the sheriff's judgment. absence in 
 
 seven da. 
 
 25. A decree pronounced in absence, and which has not been Finality of 
 recalled or brought under review by suspension, where suspension decree in 
 
 ill iSGllCC 
 
 is competent, or by reduction, shall become final, and be entitled 
 to all the privileges of a decree in foro — 
 
 (a) In six months from its date, or from the date of charge 
 under it, -where the service of the writ or of the charge 
 has been personal. 
 
 (6) In any event after the lapse of twenty years from its date. 
 
 26. In an undefended action the sheriff may allow the pursuer Amendment 
 
 or his agent to amend any error or defect in the initial writ, and of writ in on- 
 
 i -i i • i i J.T. defended 
 
 may, if he see fit, order the amended writ to be served upon the ac ti on . 
 
 defender, and may allow him to appear within such time as he 
 
 may think proper. But the expense occasioned by such amendment 
 
 shall not be chargeable against the defender, and such amendment 
 
 shall not have the effect of validating diligence used on the
 
 G66 
 
 APPENDIX. 
 
 Sched. I. dependence of the action so as to prejudice creditors of the defender, 
 but such amendment shall be operative to the effect of obviating 
 objections to such diligence when stated by the defender himself, 
 or by any persons representing him by a title, or in right of a 
 debt contracted by him subsequent to the using of such diligence, 
 and any diligence which was competent upon the original writ shall 
 be competent upon the amended writ. 
 
 Reponing. 
 
 27. At any time before implement of a decree in absence, the 
 defender may apply to be reponed by lodging with the sheriff-clerk 
 and serving- upon pursuer a note setting forth his proposed defence, 
 and his explanation of his failure to appear. 
 
 28. Along with this reponing note the defender shall consign 
 the sum of two pounds in the hands of the sheriff -clerk. 
 
 29. Upon such consignation the sheriff, if satisfied with the 
 defender's explanation, may recall the decree so far as not 
 implemented, wmereupon the action shall proceed in all respects 
 as if the defender had appeared. 
 
 30. If the sheriff is not satisfied with the defender's explanations 
 he may refuse the reponing note. 
 
 31. In either case the pursuer shall be entitled to uplift the 
 consigned money. 
 
 32. A reponing note, when duly lodged and intimated to the 
 pursuer or to his agent, shall operate as a sist of diligence. 
 
 33. Any interlocutor or order recalling, or incidental to the 
 recall of a decree in absence, shall be final and not subject to 
 review. 
 
 The 1913 Act altered the phraseology of this Rule so as to make an 
 interlocutor refusing to repone appealable by leave. 
 
 Defender may 
 
 be reponed 
 against decree 
 in absence. 
 
 Upon con- 
 signation. 
 
 Sheriff may 
 recall the 
 decree in 
 absence. 
 
 Or refuse to 
 
 recall. 
 
 Pursuer 
 
 entitled to 
 
 consigned 
 
 money. 
 
 Reponing 
 note to 
 operate as 
 sist of 
 diligence. 
 
 J udgment 
 upon a repon- 
 ing note final. 
 
 Diofended Causes. 
 Defended 34. Where appearance has been entered the sheriff-clerk shall 
 
 tabTed t0 ^ enro1 tlie cause for tabling on the first court day occurring after 
 the expiry of the inducise. 
 
 If not tabled 
 to drop from 
 roll. 
 
 35. An action which has not been t;ibled, and in which protesta- 
 tion has not been craved, shall drop from the roll, but within three 
 months the sheriff may direct it to be again enrolled for tabling 
 under such conditions as to notice, or re-service, or expenses, or 
 otherwise as he shall think fit.
 
 SHERIFF COURTS ACTS L907 1913 
 
 36. If the pursuer do not then table the caus( Sched. I. 
 his agent, upon producing the Bervice copy of the writ, may crave ;• DO t 
 protestation for not insisting, which the sheriff may grant, and JjJ^J 
 may modify the amount of protestation money payable to defender, protestation. 
 
 37. Protestation shall not be extracted till the expiry of seven I 
 
 , protoitatmii. 
 
 free days from the date of its granting, except where arrestments 
 
 have been used, in which case extract may be given out after the 
 
 lapse of forty-eight hours. 
 
 38. Upon protestation being extracted, the instance shall fall. protestation. 
 
 39. Before extract protestation may be recalled, and the pursuer Recall of 
 may be allowed to proceed with his action upon making payment pr0 
 
 to the defender of the amount of the protestation money, and upon 
 such other conditions as to the sheriff shall seem just. 
 
 40. When any defended action (other than a claim under the Sheriff m 
 Workmen's Compensation Act) has been tabled, the sheriff of consent ;'; 
 
 of parties, notwithstanding that its value exceeds fifty pounds, may, tried at 
 at any stage, direct that it be tried as a summary cause, and his ^ mary 
 decision as to this shall be final. 
 
 41. In a summary cause the sheriff may order defences if he Procedure in 
 thinks fit, or may make or certify a note upon the writ or separately ^" ,ma,y 
 of the defender's pleas, and may appoint a diet for the trial of the 
 
 cause, or may order such other procedure as the circumstances seem 
 to him to require. 
 
 42. In all other defended actions the defender shall at the tabling i„ non-sum- 
 of the action, or within six days thereafter, lodge defences. mary cause 
 
 The phraseology of Rules 41 and 42 of the 1907 Act has been altered by dencewitbin 
 the 1913 Act, consequent upon the condescendence being now three days of 
 annexed to the Initial Writ. tabling. 
 
 43. Defences shall be in the form of articulate answers to the Form of 
 condescendence, and shall have appended a note of defender's pl< 
 
 and where necessary or where a counter claim is made, a separate 
 statement of facts founded on by the defender which shall be set 
 forth succinctly. 
 
 The 1913 Act added to Rule 43 of the 1907 Act the requirement of a 
 separate statement of fact where a defence by way of counter 
 
 claim is stated. 
 
 44. Every statement of fact made by one party shall be Defences 
 answered by the other party, and if a statement made by one party wulnn SIX 
 of a fact within the knowledge of the other party is not denied by 
 
 that other party, the latter shall be held as admitting the fact so 
 stated. 
 
 This is a new Rule, added by the 1913 Art.
 
 668 APPENDIX. 
 
 Sched. I. 45. Upon defences being lodged, the sheriff-clerk shall enrol the 
 
 Enrolment action for adjustment at an ordinary court held on a day occurring 
 for adjust- no t i ess than four days thereafter. Such adjustment shall not be 
 
 adjourned more than once except on special cause shown. 
 
 Certified copy i ( ; j n every defended action the pursuer shall, after defences 
 
 fo" arrest- have been lodged, and before the diet for adjustment, lodge in 
 
 ment. process a copy of the initial writ and warrant thereon certified by 
 
 him or his agent, which may thereafter be borrowed by the agent 
 
 of any party to the process, and such certified copy shall be sufficient 
 
 warrant where competent to arrest on the dependence. Separate 
 
 precepts of arrestment may be issued by the sheriff-clerk upon 
 
 production to him of a writ containing pecuniary conclusions upon 
 
 which a warrant of citation has been granted, or of a liquid 
 
 document of debt. 
 
 Documents 47. Each party shall, along with his pleadings, or at least before 
 
 l!e"!nKiucecl" the closin g of tne record, if required by any other party in the action 
 
 beforerecord or by the sheriff, lodge any documents founded upon in the pleadings, 
 
 closed - so far as the same are within his custody or power. 
 
 Diligence for 48. Where such documents are not produced by either party, or 
 
 such' 60 ° f where they are in the hands of third parties, the sheriff may, on the 
 documents. motion of either party, grant commission and diligence for their 
 recovery, and may on that account delay closing the record. 
 
 Revisal may 49. The sheriff may upon cause shown, or ex proprio motu, order a 
 
 be ordered. rev i ga i f the pleadings, or may order pursuer to answer defender's 
 separate statement of facts. 
 
 Documents 50. When a deed or writing is founded on by any party in a cause, 
 
 Ee^oje* 1 aU objections thereto may be stated and maintained by way of 
 exceptione. exception, without the necessity of bringing a reduction thereof. 
 
 Caution may 51. The sheriff may, where an objection is so stated and where an 
 
 action of reduction would be competent, order the objector to find 
 
 \\ i it.'ii tic Lion 
 
 of reduction caution, or to make consignation as he shall direct, 
 competent. 
 
 Closing 52. When the pleadings have been adjusted the sheriff shall close 
 
 record. t j ic rec0 rd; and not later than six days thereafter the pursuer shall 
 
 lodge in process, a certified copy of the closed record. 
 
 The lodging of a copy record is a new direction made by the 1913 Act. 
 
 Alterations to 53. All alterations or additions made on the record shall be 
 be initialed authenticated by the sheriff's initials. 
 
 by sheriff. J 
 
 Preliminary 54. If preliminary pleas have been stated the sheriff shall first 
 
 pleas to be dispose of them, unless he thinks that from their being connected 
 f. & with the merits, or on any other ground, they should be reserved 
 
 till a future sta^e of the cause.
 
 SHERIFF COURTS ACTS, L907-1913. 
 
 55. Where a defender pleads a counter claim it iffice thai Sched. I. 
 he state the same in his defences, and the sheriff may thereafter de rolaim 
 with it as it' it had been stated in a substantive :o-tion, and may ma; 
 
 grant decree for it in whole or in part, or for the difference between "' ' ,;t ' ' 
 it and the claim sued on. 
 
 56. In a defended action (including a jury cause) when any pro- Failui 
 
 duction or pleading has not been lodged or order implemented within eitl "- r party 
 10 ° * to appeal or 
 
 the time required by statute or ordered by the sheriff or where in a to implement 
 
 defended action either party fails to appear by himself or his agent orders of 
 1 ■ « . C0Ult ' ■"' 
 
 at any diet, or fails to make payment of any court dues or deposit, other party 
 
 the sheriff may grant decree as craved, or of absolvitor, or may to decree - 
 
 dismiss the action, with expenses, but the sheriff may upon cause 
 
 shown prorogate the time for lodging any production or pleading or 
 
 implementing any order. If all parties fail to appear the sheriff 
 
 shall, unless sufficient reason appear to the contrary, dismiss the 
 
 action. 
 
 57. When an agent has borrowed a process, or any part thereof, Agent failing 
 and fails to return it for any diet at which it is required, the sheriff ces^mav be° 
 may impose upon such agent a fine not exceeding one pound, which fined. 
 
 shall be payable to the clerk of court for behoof of His Majesty's 
 Exchequer, but an order so imposing a fine may, on cause shown, 
 be recalled by the sheriff who granted it. Orders made under this 
 section shall not be subject to review. For the purposes of this 
 section every agent practising before his court shall be subject to the 
 jurisdiction of the sheriff. 
 
 58. If at the time of closing the record the parties renounce if probation 
 probation, they shall sign a minute to that effect on the interlocutor reu °u" 
 sheet, and the sheriff may order the case to be debated then or at a aga minute, 
 subsequent diet. 
 
 59. If proof is necessary, the sheriff shall (unless the cause has p r0 ofmay 
 been ordered for jury trial), with the least possible delay, fix a date for Ue ordered, 
 taking the proof, and may limit the mode of proof. 
 
 60. The sheriff may remit to any person of skill, or other person, R em it to per- 
 to report on any matter of fact; and, when such remit is made of son of skill, 
 consent of both parties, the report of such person shall be final and 
 conclusive with respect to the matter of the remit. When such a 
 
 remit is made, upon the motion of either party, the expense attending 
 its execution shall in the first instance be paid by the party moving 
 for it. When the remit is on joint motion, or by the sheriff ex 
 proprio motu, the expense shall in the first instance be paid by the 
 parties equally, unless the sheriff shall otherwise order.
 
 H7(i 
 
 A1TKXDIX. 
 
 Sched. I. 
 
 Parties may 
 by minute 
 agree to cause 
 being I ried 
 
 as small 
 debt cause. 
 
 61. The parties to any action may lodge in process a minute 
 signed by themselves or their agents, agreeing to the cause being 
 disposed of in the manner provided under the Small Debt Acts, 
 whereupon the sheriff shall remit the action to his small debt court 
 roll, and the whole powers and provisions of the Small Debt Acts 
 shall become applicable to the cause. 
 
 Diligence for 62. At any time after a proof has been allowed, or an order made 
 
 recovery of f or j ur y trial, the sheriff, upon the motion of either party, may grant 
 
 commission and diligence for the recovery of such documents as the 
 
 sheriff shall deem relevant to the cause. 
 
 docunii hi i. 
 
 Evidence to 63. Evidence in danger of being lost may be taken to lie in 
 
 lie in retentis. re tentis, and, if satisfied that it is desirable so to do, the sheriff may, 
 upon the motion of either party at any time, either take himself, 
 or grant authority to a commissioner to take, such evidence. 
 
 Reference 
 to oath. 
 
 Recording 
 of evidence. 
 
 64. When any person desires to refer to the oath of his adversary, 
 he shall lodge a minute to that effect, signed by himself or his agent. 
 If the party to whose oath reference has been made fail to appear 
 at the diet for taking his deposition, the sheriff may hold him as 
 confessed, and decern accordingly. 
 
 65. Evidence in a cause or a deposition, whether before the sheriff 
 or a commissioner, may be taken down by the sheriff or commissioner, 
 or by a clerk or shorthand writer nominated by the sheriff or commis- 
 sioner, to whom the oath de fideli administratione shall be administered, 
 and evidence may be recorded in narrative form or by question and 
 answer as the sheriff or commissioner shall direct, and the extended 
 notes of evidence, certified by such clerk or shorthand writer, shall be 
 the notes of the oral evidence in the cause. The sheriff or commis- 
 sioner may, if he think fit, dictate to the clerk or shorthand writer 
 what he is to record. 
 
 Sheriff may 66. If the correctness of the notes of evidence or of a deposition 
 
 amend record ^ Q ques ti ned, the sheriff may satisfy himself in regard thereto by the 
 
 offtviilcncG 
 
 examination of witnesses or otherwise, and may amend the record of 
 evidence or a deposition. 
 
 Shorthand 
 writer's fees. 
 
 67. When a shorthand writer is so employed to record evidence, 
 he shall in the first instance be paid, as regards commissions by the 
 party moving for the commission, and as regards proofs or jury trials 
 by the parties equally. The agents of parties shall be personally 
 liable for the shorthand writer's fees. And it shall be competent for 
 the sheriff to make an order directing payment to be made.
 
 SHERIFF COURTS ACTS, 1907-1913. 671 
 
 68. The sheriff may order production of documents at any stage Sched. I. 
 of the cause, and the sheriff may allow a party, a1 any time before 
 judgment, to produce any document which he has failed to produce Production of 
 timeously, upon such conditions as to payment of expenses and allow- docu ™ 
 
 ing further proof as to the sheriff shall seem just. ■ ■.•<!. 
 
 69. The proof shall be taken so far as possible continuously, but Proof to b< 
 the sheriff may adjourn the diet from time to time. tinuously. 
 
 70. The evidence of any witness or haver resident beyond the Evidence may 
 
 iurisdiction of the court, or who although resident within the juris- be taken on 
 <• ° " commission. 
 
 diction resides at some place remote from the seat of the court, or 
 who is by reason of illness, age, or infirmity unable to attend the 
 diet of proof, or a jury trial, may be taken by commission in like 
 manner as evidence to lie in retentis. 
 
 71. A copy of an interlocutor certified by the sheriff clerk allowing Citation of 
 a proof or fixing a diet for the trial of any action or for the examina- ^ ltness 
 tion of witnesses or havers, or fixing a date for a jury trial, shall be 
 sufficient warrant for citation of witnesses or havers. If any witness or 
 
 haver duly cited on an induciae of at least forty-eight hours, and after 
 having been tendered his travelling expenses, if the same shall have 
 been demanded, fail to attend a diet, either before the sheriff or 
 before his commissioner, such witness or haver may be ordained by 
 the sheriff to forfeit and pay a penalty not exceeding forty shillings, 
 unless a reasonable excuse be offered and sustained, and the sheriff 
 may grant decree for said penalty in favour of the party on whose 
 behalf said witness or haver was cited. 
 
 72. Witnesses and havers may be cited as nearly as may be in Form of 
 Form F hereto annexed, and the execution of citation shall be as citation. 
 nearly as may be in the Form G, and an agent who cites a witness shall 
 
 be personally liable for the fees of the witness. 
 
 73. It shall further be competent to the sheriff to grant second Second dili- 
 dilifrence (which shall be effectual in anv sheriffdom within Scotland 8 e . nce '- 
 
 ° N . * witness tail- 
 
 without endorsation) for compelling the attendance of said witness or ing to attend. 
 
 haver under pain of arrest and imprisonment, until caution be found 
 
 as the sheriff may require for his due attendances, the expense whereof 
 may in like manner be decerned for against the witness or haver. 
 
 74. When the sheriff, or a commissioner, repels or sustains an Objections 
 objection taken in the course of a proof, the objection stated, and taken in 
 any answer made to it, shall, if desired by the objector, be shortly to Denoted. 
 noted on the notes of evidence to the sheriff's or commissioner's 
 dictation, but the examination of the witness shall neverthel< 
 
 proceed. The sheriff or commissioner may, if he consider the
 
 672 
 
 APPENDIX. 
 
 Sched. I. objections of sufficient importance, direct the evidence objected to to 
 be taken on a separate paper; but it shall not be competent during 
 the course of a proof to submit to review any judgment pronounced 
 upon the competency of the evidence. 
 
 Appeal on 
 questions <>f 
 admissibility 
 
 of evidence. 
 
 75. On the proof being declared closed, or within seven days 
 thereafter, if the sheriff-substitute has not in the interval pronounced 
 judgment, it shall be competent by leave of the sheriff -substitute to 
 appeal to the sheriff upon objections to the admissibility of evidence 
 taken during the course of the proof, and the sheriff shall, with or 
 without a hearing, dispose of such appeal with the least possible 
 delay, and, if he think that evidence accepted should not have been 
 allowed, he may delete the same from the notes of evidence, and. if 
 he think that evidence has been improperly rejected, he may appoint 
 the same to be taken before the case is advised on its merits. 
 
 Appeal on 76. If any person, whether a party to the cause or other person, 
 
 ground of con- j,i ea j before the sheriff-substitute confidentiality with reference to 
 documentary or oral evidence, or, on pleas of alleged hypothec or 
 otherwise, shall object to produce documents, the sheriff-substitute 
 shall, on the notes of evidence, minute his decision on such pleas, and 
 any party in the cause or the party pleading confidentiality by leave 
 of the sheriff-substitute may, in open court, take an appeal to the 
 sheriff, who shall, with or without a hearing and with the least possible 
 delay, dispose of such appeal. 
 
 Proof to pro- 77. Such incidental appeal shall not remove the cause from the 
 
 standing such sheriff-substitute, who may proceed with the cause as regards points 
 appeal. not necessarily dependent upon the ruling so appealed against. 
 
 Tarties to be 78. At the close of the proof, or at an adjourned diet, if for any 
 
 heard at close re ason the sheriff shall see fit to postpone the hearing, the sheriff 
 
 shall hear the parties or their agents, and thereafter shall pronounce 
 
 judgment with the least possible delay. 
 
 of proof. 
 
 Record may 
 be amended 
 by sheriff. 
 
 Effect of 
 amendment. 
 
 Amendment of Pleadings. 
 
 79. Upon the motion of either party the sheriff may, at any 
 of llif cause, and upon such conditions as to expenses, reservice, 
 
 or otherwise as he shall deem proper, allow a record to be altered or 
 amended to the effect of determining the real question in controversy 
 (including amendment of the instance and the initial writ and the 
 adding of parties) notwithstanding that the conclusions of the action 
 may thereby be enlarged or altered. 
 
 80. No such amendment shall have the effect of validating 
 diligence used prior thereto on the dependence of the action so as 
 to prejudice the rights of creditors of the defender interested in
 
 SHERIFF COURTS A.CTS, L907-1913. 673 
 
 defeating such diligence, but such amendment shall be 0] Sched. I. 
 
 the effect of obviating objections to Buch diligence whei by 
 
 the defender himself, or by any person representing him l<v ;i title, 
 or in right of a debt contracted by him subsequent to the execution of 
 
 such diligence. 
 
 Abandonment. 
 
 81. A pursuer may at any stage of an action before an interlocutor Abandon- 
 granting absolvitor or dismissing the action has been pronounced "??* 
 offer to abandon his action by lodging a minute to that effect, sign 
 
 by himself or his agent, in which case, upon payment to defender of 
 his expenses, the sheriff may dismiss the action, and pursuer may 
 bring a new action if otherwise competent. If the pursuer fails, 
 within fourteen days of the date of taxation, to pay the defender's 
 expenses, the defender shall be entitled to decree of absolvitor, with 
 expenses. 
 
 Judgment. 
 
 82. To all interlocutors, except those of a formal nature, the Sheriff to 
 sheriff shall append a note setting forth the grounds upon which he for'uoVment 
 lias proceeded, and in his final judgment on the merits he shall set 
 
 forth his findings in fact and in law separately. 
 
 83. The sheriff may pronounce or sign any judgment or inter- Dateofjudg- 
 locutor when furth of his sheriffdom, but the date of every inteilocutor ,n ' nl '. 
 shall be deemed to be the date upon which it is entered in the books j n court" ^ 
 of the court. books. 
 
 84. At any time before extract, or before the transmission of a Clerical error 
 
 process in which an appeal has been taken the sheriff may correct hijudgment 
 
 • • • * ma 3 De 
 
 any clerical or incidental error in his judgment. 
 
 Extract. 
 
 85. Extract of any decree, interlocutor, or order of the sheriff Time of 
 (other than a decree in absence or a decree for expenses), if the same 
 
 shall not have been Booner appealed against, may be issued in a sum- 
 mary cause after the lapse of seven days ; and in any other cause, after 
 the lapse of fourteen days from its date, or a1 such earlier date as the 
 sheriff shall allow extract. 
 
 Appeal. 
 
 86. A final judgment of the sheriff-substitute may if appeal be Appeal from 
 competent and unless otherwise provided be appealed to the sheriff thesheriff- 
 or to the Court of Session at any time within three months of its 
 
 date (but not later), if the same shall nol sooner have been extracted or 
 implemented. Any other appealable interlocutor of the sheriff- 
 substitute may be appealed within fourteen days (but not later), if 
 43
 
 074 
 
 APPENDIX. 
 
 Sched. 
 
 Form i if 
 appeal. 
 
 I. not sooner extracted. Provided that an interlocutor granting interim 
 
 interdict may be appealed within fourteen days from the date of 
 intimation thereof. 
 
 87. An appeal shall be taken by the appellant or his agent dating 
 and signing a note on the interlocutor sheet in the following terms : — 
 
 The pursuer [or defender or other party] appeals [to the sheriff] 
 or [to the Division of the Court of Session]. 
 
 Or if the interlocutor sheet is not in the hands of the sheriff 
 clerk (which fact shall be certified by him), the note of 
 appeal may be written upon a separate paper, and lodged 
 along with the sheriff-clerk's said certificate. 
 
 On appeal 
 process 
 
 to sheriff or 
 clerk of 
 Session. 
 
 Reclaiming 
 note or oral 
 hearing may 
 be ordered. 
 
 But may be 
 dispensed 
 
 with. 
 
 Sheriff tu 
 
 regulate 
 
 interim 
 
 possession 
 
 pending 
 
 appeal. 
 
 Appeal to 
 Court of 
 Session. 
 
 Form of 
 appeal. 
 
 88. On an appeal being taken, the sheriff-clerk shall within two 
 days transmit the process to the sheriff or to the principal clerk of 
 Session as the case may be, and also send written notice of the 
 appeal to the other parties or their agents, but failure to give such 
 notice shall not invalidate the appeal. 
 
 89. The sheriff may order a reclaiming petition and answers, or 
 may hear parties orally. 
 
 90. The sheriff may, on the motion of both parties and if he see 
 fit, dispose of the appeal without ordering either a reclaiming petition 
 and answers or an oral hearing. 
 
 91. Notwithstanding an appeal, the sheriff shall have power to 
 regulate all matters relating to interim possession, to make any 
 order for the preservation of any property to which the action relates 
 or for its sale if perishable, or for the preservation of evidence, or 
 to make in his discretion any interim order which a due regard to 
 the interests of the parties may require. Such orders shall not be 
 subject to review except by the Appellate Court at the hearing of 
 the appeal. 
 
 92. Within three months from its date (but not later) a final judg- 
 ment of the sheriff, if not sooner extracted or implemented, may, if 
 appeal be competent, be appealed to the Court of Session. Any 
 other appealable judgment of the sheriff may, if not sooner extracted 
 or implemented, be appealed within fourteen days (but not later). 
 
 93. The party desiring so to appeal, or his agent, shall do so by 
 writing on the interlocutor sheet (or on a separate paper, in like 
 manner as in the case of an appeal from the sheriff-substitute) a note 
 in the following terms : — 
 
 The pursuer [or defender or other party] appeals to the 
 Division of the Court of Session.
 
 SHERIFF COURTS A< ITS, L907-1913. 675 
 
 94. On receiving such note of appeal the sheriff rink shall within Sched. 1. 
 two days transmit the process to the principal clerk of session at Sheriff-clerk 
 Edinburgh, and shall also send written notice of the appeal to tl. -'"'' 
 other parties or their agents, but failure to give such notice shall Edinburgh. 
 not invalidate the appeal. 
 
 95. If any action is desired to be removed to the Court of Session Forn 
 
 in terms of sections rive and thirty of this Act, the party so desiring *PP*»' l0 
 
 J l J ° Court of 
 
 its removal shall write a minute to that effect upon the interlocutor Session in 
 
 sheet, whereupon the sheriff-clerk shall give intimation to the other aotionsadvo- 
 
 ° bed under 
 
 parties or their agents and shall transmit the process to the keeper this Act. 
 
 of the roll of the Court of Session, who shall, under the direction of 
 
 the Lord President, allocate the cause to a Division and a Lord 
 
 Ordinary, and thereafter the cause shall proceed in all respects as if it 
 
 had originally been raised in the Court of Session. 
 
 96. After an appeal has been noted, the appellant shall not be Abandonment 
 entitled to abandon it unless of consent of all parties, or by leave of of appeal, 
 the Appellate Court. 
 
 97. In sections 86, 87, 88, 89, 90, and 92 "sheriff" does not 
 include sheriff -substitute. 
 
 Expenses. 
 
 98. Every decree for expenses shall be deemed to include a decree D ecree f or 
 for the expense of extracting the same, and extract of such decree for expenses to 
 expenses may be issued after the lapse of seven days unless otherwise f ex tract. 
 directed by the sheriff. 
 
 99. Expenses allowed in any action, whether in absence or in foro, Decree for ex- 
 shall, unless modified at a fixed amount, be taxed before decree is penses may 
 granted for them, and the sheriff may allow a decree for expenses to iu ; i,, cnts 
 
 go out and be extracted in name of the agent who conducted the name, 
 cause. 
 
 100. Within two days after the lodging of the auditor's report on objection to 
 taxation it shall be competent to lodge a note of objections to an auditor's 
 auditor's report, and the sheriff shall dispose of such objections in a re l )0rt - 
 summary manner, with or without answers. 
 
 Wakening. 
 
 101. If no interlocutor shall have been pronounced in a cause for Wakening 
 a year and a day it shall be held to have fallen asleep. ' i>jn- 
 
 102. Where the whole of the parties or their agents subscribe a To be by 
 
 minute on the interlocutor sheet consenting to the cause being mimUe - 
 wakened the sheriff may pronounce an interlocutor wakening the 
 cause, and thereafter proceed with it.
 
 G76 
 
 AIM'KNDIX. 
 
 Sched. I. 103- Where all parties do not so consent, the party desiring to 
 
 Publication of liave tlie cause wakened may lodge a minute to that effect, which the 
 
 application 
 for wakening. 
 
 In sequestra- 
 tion for rent. 
 
 sheriff may order to be intimated to the other parties or their agents, 
 and to he published in such manner as the sheriff shall direct, and 
 the agent for the party applying for wakening shall lodge a certificate 
 that the intimation and publication ordered have been made. If 
 satisfied, the sheriff may thereafter pronounce an interlocutor 
 wakening the cause, and proceed with it. 
 
 Sequestration for Rent. 
 
 104. In actions for sequestration, and sale, for recovery, or in 
 security of rent, whether brought after the term of payment or 
 currente termino, payment of rent may be concluded for, and decree 
 for payment of such rent or part thereof when the same has become 
 due and payable, may be pronounced and be extracted in common 
 form. 
 
 Warrant may 103. In the first deliverance upon a writ for sequestration for 
 
 !l " ! to rent the sheriff may sequestrate the effects of a tenant, and grant 
 
 inventory and J 
 
 secure. warrant to inventory and secure the same, and all warrants to seques- 
 
 trate, inventory, sell, eject, or re-let shall be deemed to include 
 authority, if need be, to open shut and lockfast places for the purpose 
 of carrying such warrants into execution. 
 
 Sequestrated 106. The sheriff may order the sequestrated effects to be sold 
 
 effects may be t th • k t f an ffi cer f COU rt or other person named, 
 sold. ° 
 
 Sale to be re- 107. When a sale follows, it shall be reported within fourteen 
 
 Fourteenda 1 ^ (la - ys ' ;Uld P ursuer sna11 lod 8 e tlie r0U P rolls or certmed copies thereof 
 and a state of debt. 
 
 Sheriff may 
 decree for 
 
 108. In the interlocutor approving the report of sale, or by 
 separate interlocutor, the sheriff may give decree against the defender 
 after sale. for any balance remaining due. 
 
 Sheriff may 109. The sheriff may at any stage appoint a fit person to take 
 
 taker or order charge of the sequestrated effects, or may require the tenant to find 
 caution. caution that they shall be made forthcoming. 
 
 Removings. 
 
 Action of re- 110. An action of removing may be raised at any time, provided 
 
 moving where th tenant h ag bound himself to remove by writing, dated and signed 
 
 nxed term ot . 
 
 removal. within twelve months of the term of removal, or, where there is more 
 
 than one ish, of the ish first in date to remove. When the tenant has 
 
 not so bound himself, an action of removing may be raised at any time 
 
 provided that—
 
 SHERIFF COnns ACTS, 1907-1913. 677 
 
 (a) In the case of a lease of Lands exca extent Sched. I. 
 
 for three years and upwards, an interval of i than 
 
 one year nor more than two years Bhall elapse between 
 the date of notice of removal and the term of removal 
 first in date ; 
 
 (b) In the case of leases of lands i two acres in extent, 
 
 whether such leases be wi-itten or verbal held from year to 
 vear or under tacit relocation, or for any other period : 
 than three years, an interval of not less than six months 
 shall elapse between the date of notice of removal and the 
 term of removal firsl in date; and 
 
 (c) In the case of houses let with or without land attached not 
 
 exceeding two acres in extent, as also of land not exceed- 
 ing two acres in extent without houses, as also of mills, 
 fishings, shootings, and all other heritable subjects 
 excepting land exceeding two acres in extent, and let for 
 a year or more, forty days at least shall elapse between 
 the date of notice of removal and the term of removal 
 first in date. 
 
 Provided that nothing herein contained shall affect section 27 of 
 the Agricultural Holdings Act, 188:5 : Provided also that in any 
 defended action of removing, the sheriff may order the defender 
 to find caution for violent profits : Provided also that in actions of 
 declarator of irritancy and removing by a superior against a vassal, 
 the pursuer shall call as parties the last entered vassal and such 
 heritable creditors and holders of postponed ground burdens as are 
 disclosed by a search for twenty years prior to the raising of the 
 action, and the expense of the search shall form part of pursuer's 
 expenses of process. 
 
 111. Notices under sections 34, 35, and 36 of this Act shall be as Form of 
 
 nearlv as may be in the Form II annexed hereto, and a letter of notlce °' 
 . * t. t removal. 
 
 removal may be in the terms of Form I. 
 
 112. Notices under section 37 of this Act shall be as nearly as Form of 
 
 may be in the Form J hereto annexed, and such form may be used, notice under 
 
 • i section 37. 
 
 mutatis mutandis, also for notices to the proprietor by or on behalt 
 
 of the tenant. 
 
 113. Removal notices under sections 34, 35, 36, .">7, and 38 of the Removal 
 Act may be given by a messenger at arms or sheriff officer, or by uotlces - 
 registered letter signed by the person entitled to give such notice. 
 
 or by the law agent or factor of such person, rjosted at any post office 
 within the United Kingdom in time to admit of its being delivered at
 
 678 
 
 APPENDIX. 
 
 Sched. I. the address thereon on or prior to the last date upon which by law 
 such notice must be given, addressed to the person entitled to receive 
 such notice, and bearing the particular address of such person at 
 the time if the same be known, or, if the same be not known, then 
 to the last known address of such person. 
 
 Evidence of 
 notice fco 
 
 remove. 
 
 114. A certificate of notice under rule 111, dated and endorsed 
 upon the lease or extract, or upon the letter of removal, and signed 
 by the sheriff officer, messenger-at-arms, or by the person giving the 
 notice, or his law agent, or factor, or an acknowledgment of notice 
 endorsed on the lease or extract or letter of removal by the party 
 in possession or his agent shall be sufficient evidence that notice has 
 been given. Where there is no lease, a certificate endorsed upon a 
 copy of the notice or letter, certified to be correct, by the person, 
 sheriff officer, messenger-at-arms, law agent, or factor sending the 
 same, which certificate shall be signed by such party sending the 
 notice or letter, shall also be sufficient evidence that notice has been 
 given. A certificate of notice under rule 112, dated and endorsed 
 upon a copy of the notice or letter signed by the party sending the 
 notice, shall be sufficient evidence that such notice has been given. 
 
 Form of 
 action for 
 summary 
 removing. 
 
 Summary Removings. 
 
 115. The action for summary removing as authorised by section 
 38 of this Act may be at the instance of a proprietor or his factor, or 
 any other person by law authorised to pursue a process of removing, 
 and be in the Form K hereto annexed. 
 
 Form of 
 warrant. 
 
 116. The warrant to be granted thereon may be in the Form B 
 hereto annexed upon two days induciae and may be signed by the 
 sheriff- clerk. 
 
 Decree in 
 absence may 
 be recalled 
 within three 
 days. 
 
 117. If the defender fail to appear, the sheriff may dispose of the 
 cause in his absence, but, if within three days the defender shall 
 satisfy the sheriff that there was reasonable excuse for his non- 
 appearance, the sheriff may re-hear the cause, and, if decree has been 
 granted and not implemented, may recall the decree upon such con- 
 ditions as to expenses and otherwise as the sheriff shall deem reason- 
 able. Where decree is pronounced in absence, the sheriff may give 
 such directions as he may deem proper for the preservation of the 
 defender's goods and effects. 
 
 Service copy 118. The warrant upon the petition or complaint or the defender's 
 
 '' service copy thereof shall be sufficient warrant for the citation of 
 
 cicnt to cite 
 witnesses. 
 
 witnesses.
 
 SHERIFF COURTS ACTS L907-1913. 679 
 
 II!). Except as hereinafter provided, such action for summary Sched. I. 
 
 removing shall he conducted and disposed of in the summary manner >mi n.i 
 
 in which proceedings arc enndueted under the Small Debt Arts and procedure 
 
 . . applii 
 
 shall not be subject to review. Bummary 
 
 The phraseology of this Rule has been altered by the 1913 Act, con- removing. 
 sequent upon the alteration of Rule 121. 
 
 120. When decree and warrant of ejection is granted it shall be Form of 
 in the Form L hereto annexed. 
 
 121. In all such actions for summary removing, where the sheriff may 
 defender has found caution for violent profits, or where such caution order caution. 
 has been dispensed with, he shall be entitled to give in written 
 
 answers. 
 
 The 1913 Act substituted this Rule for Rule 121 of the 1907 Act. 
 
 122. Where a defender has given in answers, and caution for W lien caution 
 violent profits has been found or has been dispensed with, such causes JjJjjJjPJJ" 
 shall, as nearly as may be thereafter, be conducted according to the ordinary 
 procedure in ordinary actions of removing, and shall be subject to action. 
 review in common form. 
 
 Summary Suspension. 
 
 123. Where a charge has been given on a decree of court granted Summary 
 
 • • t t- j i_-n application 
 
 by the sheriff or a decree of registration proceeding upon a bond, bill, f or suspension 
 
 contract, or other form of obligation registered in any sheriff court of charge may 
 
 ., ,, be brought 
 
 books, or in the books of council and session, or any others competent, in court of 
 
 or on letters of horning following on such decree, for payment of any defender's 
 
 sum of money not exceeding fifty pounds, exclusive of interest and 
 
 expenses, the person so charged may apply in the sheriff court of his 
 
 domicile for suspension on caution of such charge and diligence. 
 
 124. On sufficient caution being found in the hands of the sheriff- Diligence 
 clerk for the sum charged for interest and expenses, and a sum to be JJJjJJj 
 fixed by the sheriff in respect of expenses to be incurred in the 
 suspension process, the sheriff may sist diligence, order intimation 
 
 and answers, and proceed to dispose of the cause in a summary 
 manner. 
 
 125. If objections be taken to the competency or regularity of Judgment of 
 
 suspension proceedings, the judgment of the sheriff-substitute, on such ^, m J| eU . , I ' u l . v ' ,n 
 
 objections, may be appealed to the sheriff, bul his judgment thereon 
 
 shall be final. 
 
 Arrestment. 
 
 126. If a schedule of arrestment, has not been personally served wi,,.,, axrest- 
 upon an arrestee, it shall be necessary to make the arrestment ™ e t n ^ h 6 ^ ule 
 effectual, that a copy of the schedule be als<, sent by postal registered personally 
 
 letter to the last known place of abode of the arrestee, or. if such oopyti
 
 (ISO 
 
 APPENDIX. 
 
 Sched. I. place of abode is unknown, or, if the arrestee is a firm or corporation, 
 
 to the arrestee's principal place of business if known, or, if not known, 
 to any known place of business of the arrestee, and the officer shall in 
 his execution certify that this has been done, and specify the said 
 address. 
 
 itment 
 to be 
 
 reported. 
 
 127. An arrestment on the dependence of an action used prior to 
 service shall fall, unless the action shall have been served within 
 twenty days from the date of execution of arrestment, and in the case 
 of defended actions tabled within twenty days of the first ordinary 
 court day occurring subsequent to the expiry of the induciie and in 
 the case of undefended actions decree in absence be taken within 
 twenty days of the expiry of the induciae, and, when such an arrest- 
 ment has been executed, the party using it or his agent shall forthwith 
 report the execution to the sheriff-clerk. 
 
 The 1913 Act substituted this Rule for Rule 127 of the 1907 Act, 
 
 Forthcoming and Multiplepoinding. 
 Forum of 128- An action of forthcoming or multiplepoinding may be raised 
 
 action of mul- m the sheriffdom where the fund or subject in medio is situated, or 
 tiplepomdmg ^ that to ^^ j uris(liction the aiTes tee or the holder of the fund is 
 
 subject, although the common debtor may not reside within either 
 sheriffdom. 
 
 Real raiser to 129. The party raising an action of multiplepoinding shall set 
 
 be set forth. iovt ^ in tlie initial writ who is the real raiser. The sheriff may, in 
 an action of multiplepoinding, allow the real raiser his expenses 
 preferably out of the fund in medio ; and, in an action of furth- 
 coming, the expenses of bringing the action shall be deemed to be 
 part of the arrestor's claim, which may be made good out of the 
 arrested fund or subject. 
 
 130. Where, in an action of multiplepoinding, no defences are 
 stated, and where defences are stated and repelled, the sheriff shall 
 order claims and, if necessary, answers within a short space. 
 
 131. Several claimants may state the facts on which they base 
 their claims on the same paper, but, where necessary, they shall 
 append separate claims and separate pleas in law. 
 
 132. Where there are defences in an action of furthcoming or 
 
 competing claims in a multiplepoinding process the procedure shall 
 
 be as near as may be that in ordinary actions where defences have 
 
 been lodged. 
 
 Jury Tiual. 
 
 Jury. 133. The jury shall consist of two special, and five common jurors, 
 
 who shall be chosen from a panel of five special and ten common jurors 
 to be cited for the diet. 
 
 Claims to be 
 ordered. 
 
 Several claim- 
 ants may state 
 one paper. 
 
 When com- 
 peting claims 
 procedure as 
 in ordinary 
 action.
 
 SHERIFF COURTS A.CTS, L907-1913. 681 
 
 134. The jury shall be cited by the sheriff-clerk from the sheriff Sched. I. 
 court jury book in the manner prescribed by law or in use to be citation of 
 followed for the citation of jurors in Scotland ; and all statutory or J ur y- 
 other regulations and customs relative to the citation, non-attendan 
 
 selection, and swearing of jurors Bhall (subject to rule L35) apply to 
 jury trial in the sheriff court. 
 
 135. Each party in the cause shall have right to challenge one Challenge of 
 
 special and one common juror, but not more; and in this matter, JlU01 
 
 where there are more pursuers or defenders than one, they shall act 
 
 collectively and not individually. 
 
 [Rule 136 has been repealed by the 1913 Act, consequent upon the Jury to have 
 alteration of section 32 of the 1907 Act.] copy issue. 
 
 137. The law and practice relating to the taking of evidence in Practice in 
 proofs before the sheriffs shall apply to jury trials. Unless all the apply, 
 parties appearing put in a minute (which may be signed by their 
 
 agents) dispensing with a record of the proceedings, the same shall 
 be taken by an official shorthand writer of the court, but the notes 
 need not be extended unless, in the case of an appeal, their produc- 
 tion shall be ordered by the appellate court, in which event it shall 
 be the duty of the appellant to procure the extended notes, certified 
 by the shorthand writer, and to lodge the same with the principal 
 clerk of session. 
 
 138. When evidence has been taken to lie in retentis, if the sheriff Evidence on 
 is satisfied that the deponing witness is dead, or that he cannot commission, 
 attend at the trial owing to absence or infirmity or other sufficient 
 
 cause, it shall be competent for the sheriff, on the motion of any 
 party in the cause (irrespective of which party moved for the com- 
 mission to take such evidence) to direct that the report of the 
 commission be read to the jury, and when so read such report shall 
 form part of the evidence in the cause ; but depositions shall not be 
 read or referred to if the deponing witness attends at the trial. 
 
 139. Exceptions taken in the course of the trial to rulings of the Exceptions. 
 sheriff in regard to admission or rejection of evidence, or in regard 
 
 to points of law laid down in the course of the trial or in the sheriff's 
 charge to the jury, shall, if required by the party taking the excep- 
 tion, be recorded to the sheriff's dictation upon the official shorthand 
 notes before the jury proceed to consider their verdict. 
 [Rule 140 of 1907 Act has been repealed by the 1913 Act.] 
 
 141. If the sheriff deem it necessary to charge the jury, be shall Charge to 
 do so immediately after, or as soon as practicable after, the conclusion J 111 "}' - 
 of the speeches, or, if none be made, after the conclusion of the 
 evidence.
 
 682 
 
 APPENDIX. 
 
 Sched. I. 142. Documents or productions intended to be put in evidence or 
 
 Productions, referred to at the trial shall be lodged with the clerk of court four 
 days before the date fixed for the trial, but the sheriff may allow 
 productions to be exhibited and produced at the trial if he is satisfied 
 that they could not reasonably have been lodged earlier and that 
 reasonable notice had been given to the other parties of intention to 
 produce at the trial. 
 
 143. The jury may return a verdict by a majority of its number 
 
 at any time not less than one hour after the jury has been enclosed. 
 
 [Rule 144 of the 1907 Act has been repealed by the 1913 Act, being 
 superseded by the new section 32.] 
 
 145. The verdict returned by the jury shall be recorded upon the 
 interlocutor sheets, and signed by the clerk of the court, and this 
 having been done, the jury shall be discharged. 
 
 146. Any party in the cause may, so soon as the verdict has been 
 so recorded or within fourteen days thereafter, move the sheriff to 
 apply the verdict, and upon this motion the sheriff may hear parties 
 and may make avizandum. As soon as practicable the sheriff shall 
 issue an interlocutor applying the verdict and grant decree accord- 
 ingly. In this interlocutor the sheriff shall also dispose of the 
 question of expenses. 
 
 Interlocutor 147. Where no shorthand notes of the proceedings have been 
 
 final if no taken, the interlocutor applying the verdict shall not be subject to 
 
 shorthand ri J ° 
 
 notes. review. 
 
 Verdict 1 >y 
 majority. 
 
 Verdict to be 
 recorded. 
 
 And followed 
 by inter- 
 locutor. 
 
 Grounds of 
 appeal to 
 Court of 
 Session. 
 
 148. If shorthand notes have been taken, it shall be competent 
 for any party in the cause within fourteen days after the date of the 
 final interlocutor of the sheriff applying the verdict (but not later) to 
 appeal to a division of the Court of Session by lodging with the 
 sheriff-clerk a note of appeal in the Form M annexed hereto. 
 
 Transmission 149. The sheriff-clerk shall, within three days of his receiving the 
 
 of process. no ^ e f a pp ea i ; notify the other parties in the cause, and transmit the 
 process to the principal clerk of session at Edinburgh. 
 
 New trial. 
 
 Charge 
 against a 
 corporation. 
 
 150. If the court shall order a new trial, the principal clerk of 
 session shall re-transmit the process to the sheriff-clerk, and the 
 sheriff shall as soon as practicable fix a date of new trial, which shall 
 proceed as herein directed as regards the original trial. 
 
 Charge. 
 
 151. It shall be competent to charge any corporation or associa- 
 tion or any individual or individuals carrying on business under a 
 firm or trading or descriptive name under such name at the principal
 
 SHERIFF COl'ins ACTS, L907-1913. 
 
 place where such business is carried on (including in the case of a Sched. I. 
 
 corporation or association the place of business or office of their clerk 
 
 or secretary) or where such principal place of business is furth of 
 
 Scotland, at any place of business in Scotland at which such business 
 
 is carried on. 
 
 The phraseology of this Rule of 1907 Act has been altered by the 1913 
 Act, to make it conform to Rule 11. 
 
 The Poor's Roll. 
 
 152. The Sheriff shall annually make an order appointing the Agenl 
 agents enrolled in his court (or, where the county is divided into ™? 
 districts having separate local courts, the agents enrolled in the district for pom-. 
 courts) to meet to nominate a specified number of agents for the 
 
 poor. 
 
 153. Notice of such order shall be given by a copy thereof being Notice of 
 affixed on the walls of the court-houses and sheriff-clerk's offices in "^ u . t m h °°" e 
 the county or district. walls. 
 
 154. At said meeting the agents present shall, by a majority of Nomination 
 
 votes, nominate the required number of agents, and cause the ^ s h e \^ 01 
 nominations to be reported to the sheriff. 
 
 155. The sheriff shall have power to confirm the nominations, in Sheriff may 
 whole or in part, or to decline to do so. refuse" 
 
 156. Six days before the list is submitted to the sheriff, the Notice to 
 sheriff-clerk shall notify each agent who has been nominated, and »g e " ts - 
 such agent may, before the nominations are confirmed, represent to 
 
 the sheriff any reason why his nomination should not be confirmed. 
 
 157. In the event of the agents failing to nominate as above pro- [f agents fail 
 vided for, or the sheriff not confirming the nomination, the sheriff gher^may 
 may himself make the requisite nomination, or may appoint another Dominate. 
 meeting to be held. 
 
 158. The agents nominated shall act as agents for the poor in Agents to act 
 
 ,-,•,• i-i.i -iii? for one year. 
 
 the county, or the district in which they are appointed, for one year, 
 
 but they shall be eligible for re-nomination. 
 
 159. The agents so nominated shall as they themselves arrange. Agents to aet 
 or as the sheriff shall direct, act as procurators for the poor in all £* Jforiff. 
 causes, civil and criminal, including attendance at the circuit court. 
 
 160. The agents for the poor, in their respective districts, shall 
 
 , , . , . ., . , . . assist each 
 
 assist each other by taking precognitions, or proofs on commission, ot i K1 . 
 or otherwise as may be requisite and reasonable.
 
 684 
 
 AIM'KXDIX. 
 
 Sched. I. 161. In sections 152 to 157 
 
 substitute. 
 
 sheriff " does not include sheriff- 
 
 Applicant in 
 produce 
 certificate of 
 
 poverty. 
 
 162. Along -with this application for the benefit of the poor's 
 roll, the applicant shall produce a certificate signed by the inspector 
 or an assistant inspector of poor of the parish or district where the 
 applicant resides, bearing that the applicant is unable, through 
 poverty, to pay for the conduct of legal proceedings. 
 
 Application 163. The sheriff shall remit the application to the procurators 
 
 tu procurators ^ or * ne P 00r Avno shall notify the parties, and after inquiry shall 
 for poor. make a report to the sheriff. 
 
 If they report 164. If they report that the applicant has a probable cause of 
 
 titled sheriff a °tion and is entitled to the benefit of the poor's roll, the sheriff 
 
 to appoint an shall appoint one of the agents to take charge of the applicant's 
 agenl to con- 
 duct cause. case - 
 
 Agent to con- 165. Such agent shall conduct the cause to its final issue, 
 elude cause, notwithstanding that during its progress he may have ceased to be 
 an agent for the poor. 
 
 Agent to have 166. Unless expenses shall be awarded against and recovered 
 fees unless* 1 f' om the opposite party, the agent shall have no claim for fees; 
 
 recovered but the litigant shall be liable to him for actual outlays incurred 
 
 from other .,, ,, ,.,. ,, ,. 
 
 tv with the litigant s sanction. 
 
 Agent not 
 liable for fees. 
 
 167. The agent shall not be liable for witnesses' fees, shorthand 
 writers' fees, or court dues unless they are recovered by the agent 
 personally. 
 
 Agent not 168. Neither the agent nor the litigant shall be liable for dues 
 
 court dues °^ com b or officers' fees, unless these are awarded against and 
 recovered from the opposite party, in which case the litigant (or 
 the agent, if he personally recovers the same) shall be liable. 
 
 Sheriff may 
 remove liti- 
 gant from 
 poor's roll. 
 
 169. It shall be in the power of the sheriff at any time to deprive 
 any litigant of the benefit of the poor's roll.
 
 SHERIFF COUKTS ACTS, 1907-1!>1:;. 685 
 
 Fonn A. Sched. I. 
 
 Sheriffdom ok at 
 
 A.B. [design him: if he sues in any special character set that 
 forth ; as also where necessary relationship to defender, e.g., wife, 
 creditor, dec J, 
 
 Pursuer. 
 
 Against 
 
 CD. [design him; if sued in any special character set that 
 forth, e.g., as trustee, vitious intromitter, &c.\ 
 Defend) r. 
 
 The pursuer craves the. Court [here set forth the specific decree, 
 warrant, or order asked]. 
 
 (To be signed) A.B., Pursuer; 
 
 or 
 X.T. [add designation and business address]. 
 Pursuer's Agent. 
 
 Condescendence . 
 [State articulately the farts which form the ground of action.] 
 
 Pleas in Law. 
 [State them articulate!;/.] 
 Under Rule 1 this supplants Form A of the 1907 Act. 
 
 Form B. 
 
 [Place and date.] Grants warrant to cite the defender [or 
 respondent] by serving a copy of the writ and warrant upon an 
 inducise of , and appoints him to answer 
 
 within the sheriff court-house at , [in lioom 
 
 No. , or in Chambers, or as the case may be], on 
 
 the day of at o'clock noon, 
 
 under certification of being held as confessed. [When necessary 
 add (meantime sequestrates and grants warrant to inventory and 
 secure); or (grants warrant to arrest on the dependence) or 
 (otherwise as the case may be). J
 
 686 APPENDIX. 
 
 Sched. I. Form C. 
 
 [Place and date.] Grants warrant to cite the defender 1>\ 
 serving a copy of the writ and warrant upon an induciae of 
 days, and appoints him, if he intend to defend, to lodge a notice of 
 appearance with the sheriff-clerk at within the 
 
 inducne, under certification of being held as confessed. [Meantime 
 [/rants interim interdict, or warrant to arrest on the dependence, 
 or sequestrates and grants warrant to inventory, or otherwise, as the 
 case may be.} 
 
 Form D. 
 
 [Place and date, and, if necessary, hour.] CD., defender. 
 You are hereby served with the foregoing [or within -written] writ 
 and warrant, and required to answer thereto, conform to the said 
 warrant. [// posted and if necessary add (the inducioz is reckoned 
 from twenty-four hours after date of posting).] 
 
 (To be signed) P.Q., Sheriff Officer, 
 
 X.P. [add designation and business address]. 
 Pursuer's Agent. 
 
 Form E. 
 
 [Place and date.] I, , do hereby 
 
 certify that upon the day of [if necessary add between 
 
 the hours of and ] I duly cited CD., the defender [or 
 
 respondent], to answer to the foregoing [or within-written] writ. 
 This I did by [set forth mode of service, if by officer and not by post, 
 
 add in presence of L.M. (design him), witness, hereto with me 
 subscribing]. 
 
 (To be signed) P.Q., Sheriff Officer ; 
 L.M., Witness; 
 
 X.Y. [add designation and business address]. 
 Pursuer's Agent.
 
 SHERIFF COURTS ACTS, L907-1913. 687 
 
 Form F. Sched. I. 
 
 A'./,, [design him], you arc hereby required to attend .-it tin- 
 Sheriff Court House at [street address] [if necessary . add with in 
 Court lioom, No. , or in Chandjers], on , the 
 
 day of , at o'clock noon, to give 
 
 evidence for pursuer [or appellant or complainer] [or defender or 
 respondent] in the action A. B. [design him], pursuer, against CD. 
 [design him], and [if necessary] you are required to bring with you 
 [specify documents] under penalty of forty shillings if you fail to 
 
 attend. 
 
 Dated this day of [if necessary 
 
 add between the. liours of and noon]. 
 
 [Signed] P.Q., Sheriff Officer; 
 or 
 X.T. [add designation and business address]. 
 Pursuer's [or defender's or appellant 's or 
 respondent's] Agent. 
 
 Form G. 
 
 [Place and date] I, 
 do hereby certify that upon the day of [if necessary, 
 
 add between the hours of and noon]. I duly cited K.L., 
 
 [design him], to attend at o'clock noon, within 
 
 to give evidence for the in the 
 
 action A.B. [design him], against CD. [design him], and I also 
 required him to bring with him [specify documents]. This I did by 
 [set forth mode of citation]. 
 
 [Signed] P.Q., Sheriff Officer; 
 
 or 
 
 X.Y. [add designation and business address]. 
 Pursuer's [or defender's or appellant's or 
 respondent's] Agent. 
 
 Form H. 
 To [name, designation, and address of party j n possession]. 
 
 You are required to remove from [describe subjects] at the 
 term of [or if different terms, state them and the subjects
 
 688 APPENDIX. 
 
 Sched. I. to which they apply], in terms of lease [describe it] or [in terms of 
 your letter of removal of daU ] or [otherwise as 
 
 the case may be]. 
 
 Form I. 
 To [name and designation of addressee]. 
 
 [Place and date.] I am to remove from [state subjects by 
 usual name or short description sufficient for identification] at the 
 term of 
 
 K.L. [add designation and address]. 
 
 If not holograph to be attested thus — 
 
 M.N. [add designation and address], witness. 
 
 Form J. 
 
 [Place and date] 
 
 You are required to remove from [ ] that 
 
 portion of ground [describe it] ; or the mill of [describe it] ; or the 
 shootings of the lands and estate of [describe them] ; or [other 
 subjects to which this notice is applicable], at the term of 
 Whitsunday [insert year] [or Martinmas, as the case may be, 
 inserting after the year the words, being the \§th day of May, or 
 the \lth day of November, or the 28th day of May, or the 28th 
 day of November, as the case may be]. 
 
 To K.L. [designation and address]. 
 
 Form K. 
 
 In the sheriff court of 
 at 
 A.B. [design him], pursuer, complains that he [or his author, as the 
 case may be], let to CD. [design him], defender [or his author, as 
 the case may be], a dwelling-house, garden, and pertinents [or other 
 subjects, as the case may be], situated at , 
 
 for the period from to ,
 
 SHERIFF COURTS ACTS, l!)07-I!U:!. 689 
 
 and that the defender refuses or delays to remove therefrom, although Sched I 
 his term of occupancy baa expired, and it is necessary to obtain 
 warrant for his ejection; therefore decree < - 1 1 '_-- 1 1 1 to be granted for 
 removing and ejecting the defender, \\i- family, i ts, cottai 
 
 and dependants, with thei furth and from the said 
 
 subjects [here insert date at which removal <>r ejection is lought], that 
 the pursuer or others in his right may then enter t<> and possess the 
 same. [// expenses are sought add. -and the defender ought to be 
 found liable in the expenses of process and dues <>f extract."] 
 
 [Signature of pursuer or h>* agent.] 
 
 Form L. 
 
 At the day of the 
 
 sheriff [in absence of defender, or having heard parties, as the case 
 may be] giants warrant for ejecting the said CD., defender, and 
 others mentioned in the complaint from the subjects therein specified, 
 such ejection not being sooner than [here insert time appointed for 
 ejection, and whether after a charge on such mducia as may lie 
 deemed proper or instantly]: Finds the defender liable in 
 of expenses [or otherwise, as the case may be] and decerns. 
 
 [Signature of Sheriff.] 
 
 Form M. 
 
 At the jury trial in the action at the instance of A.IJ. [design 
 him], pursuer, against CD. [design him], defender, held at 
 
 , on the day of 
 
 , before sheriff of 
 
 The verdict of the jury was [here quote the recorded verdict netting 
 forth where the sheriff has proposed to the jury a question or questions of 
 fact, such question or questions, and the answer or answers thereto returned 
 
 by the jury], 
 
 ****** 
 
 The interlocutor of the sheriff applying the verdict was pronounced 
 
 on , and was in these terms [hen quote 
 
 the interlocutor]. 
 
 The [state part;/ a ppealing] appeals to the Division 
 
 44
 
 690 APPENDIX. 
 
 Sched. I. of the Court of Session upon the ground [here state the grounds 
 conform to section 31 of the Act], 
 
 (a) That in the interlocutor complained of the verdict wae 
 erroneously applied. 
 
 (/;) That the verdict of the jury was contrary to evidence in 
 respect [here set forth clearly and succinctly the particulars 
 in which it is alleged the evidence led and the verdict 
 returned are inconsistent]. 
 
 (c) That evidence was unduly admitted [or rejected] in regard 
 
 to [here set forth shortly the fact in regard to which the 
 evidence was admitted or rejected]. 
 
 (d) That the sheriff misdirected the jury in regard to [here state 
 
 shortly the 'point of law alleged to be misdirection]. 
 
 (e) That the damages awarded by the jury were excessive. 
 
 M.P., pursuer [or other party], 
 
 X.T. [signature and business address]. 
 Agent for the 
 
 Under Rule 148 this supplants Form M of the 1907 Act.
 
 SHERIFF ('OFKTS ACTS, IHD7-1913. 
 
 691 
 
 SECOND SCHEDULE. 
 
 Sched. II. 
 
 II and 
 ( Ihaptei 
 
 20 Geo. 2 c. 43. 
 
 2 c. 19. 
 28 Geo. 2 c. 7. 
 
 .MK.ro. 3c. L12. 
 
 6 Geo. 4 c. 23. 
 c. 120. 
 U Geo. 4 c. 29. 
 
 11 Geo. 4 and 
 1 \V. 4 c. Gf>. 
 
 2 & 3 W. 4 
 e. 65. 
 
 1 & 2 Vict. c. 
 114. 
 
 1 & 2 Vict. c. 
 L19. 
 
 16 & 17 Viet. 
 ,.. 80. 
 
 27 4 28 Vict, 
 c. 106. 
 
 30 iV 31 Vict. 
 
 c. '■»>. 
 
 31 & 32 Vict. 
 c. 100. 
 
 33 & 34 Vict. 
 c. 86. 
 
 38 & 39 Vict. 
 c. 81. 
 
 39 & l" Vict. 
 
 c. 7". 
 
 Shorl Title. 
 
 
 The Heritable • 
 dictions (Scotland) 
 \< i. L746. 
 
 The Sheriffs (Scotland) 
 
 \ ct, 1717. 
 
 The Sheriffs (Scotland) 
 Act, L755. 
 
 The Court of Session 
 Art. L810. 
 
 The Sheriff Courts 
 
 (Scotland) Art. L825. 
 
 The Court of Session 
 Art, lS2f>. 
 
 The Circuit Courts 
 (Scotland) Act, L828. 
 
 The Court of Session 
 Act, 1830. 
 
 The Representation of 
 the People (Scotland) 
 Act, 1832. 
 
 The Debtors (Scotland) 
 Act, 1838. 
 
 The Sheriff Courts 
 
 (Scotland) Act, 1838. 
 
 The Sheriff Courts 
 (Scotland) Act, 1853. 
 
 The Sheriffs Substitute 
 Act, L864. 
 
 The Debts Recovery 
 (Scotland) Act, L867. 
 
 The Court of Session 
 Act, 1868. 
 
 The Sheriff Courts 
 (Scotland) Act, 1870. 
 
 The Sheriffs Substitute 
 
 (Scotland) Act, 1875. 
 
 The Sheriff Courts 
 (Scotland) Act, L876. 
 
 ion 29. 
 
 Seotii 'ii 10 and 1 1 . 
 
 The whole Act. 
 
 Sections 36, '■'■, . 38, and 10, io far 
 sections relate to Sheriff < lourt. 
 
 Sections 1, ">, l, 5, and 8, so far as these 
 sections relate to r\\\\ causes in the 
 Sheriff Court, and section 10. 
 
 Section 10, so far as relating to appeal for 
 
 jury trial from Sheriff Court to Court of 
 Session. 
 
 Section 22. 
 
 Sections 22, 23, 24, and 32, as also in 
 section 33 the words "and all actions 
 of separation a mensa et thoro." 
 
 Sect ion 36, so far as relating to sheriff and 
 sheriff-substitute. 
 
 Section 19. 
 
 The whole Act, except sections !'.">. L'7. 
 and 28, and section 31, so far as that 
 section relates to courts other than 
 Sheriff Courts. 
 
 The whole Act, except section 31. 
 The whole Act. 
 The whole Act. 
 
 Sections 65, 66, 67, 68, 69, 70, 7.".. and 79, 
 so far as those sections relate to appeals 
 from Sheriff Court. 
 
 Sections 13 and 1 L 
 
 Sections 1 and 2. 
 
 Sections I to 25, both inclusive. 
 
 So i ii 'us 27 to 34, both inclusive. 
 Seel i' ins 16 to 52, both inclrj 
 
 Section 54, except in BO far as it relates 
 to commissary regulations. 
 
 Ml the schedules.
 
 G92 
 
 APPENDIX. 
 
 Sched. II. 
 
 Session and 
 Chapter. 
 
 40 & 11 Viet, 
 c, 50. 
 
 52 A :.:; Vict, 
 c. 26. 
 
 c.l & 62 Vicl 
 c 8. 
 
 Shorl I itle 
 
 The Sheriff Courts 
 (Scotland) Act, Is;;. 
 
 The Small Deb1 
 Amendment (Scot- 
 land) Act, L889. 
 
 The Sheriffs Tenure of 
 ( ifHce (Scotland) Act, 
 is: is. 
 
 Extent of Repeal. 
 
 The whole Act. 
 
 Section S. 
 
 The whole At.
 
 INDEX OF CASES CITED.
 
 [NDEX OF CASKS (TI'Kh. 
 
 Agnew ». White, 1899, I 1. 
 
 1026, 672 
 
 Aikman v. Aikman I 
 
 l m;s. 6 M. 277, 570, 580 
 
 Ailsa v. Jeffray, 1859,21 D.492, 1213 
 Aird '•. Tarbert Scl 1 Board, 
 
 1907, S.C. 22, 305, 597,790, l W6 
 Aitchison w. M'Donald (1910), 
 
 1911, S.C. 171, 115 
 ,.. Macdouald, L910, 2 
 
 S.L.T. H3, 263 
 
 v. Steven, 1864, 3 M. 81, 
 
 103,814 
 Aitken w. Dirk, L863, I M. 
 
 L038, 597 
 /•. ( roui lay, 1903, 5 F. 
 
 5s.-., 232 
 a. Kyd, 1890, 28 S.L.R. 
 
 115, 968 
 
 Alexander v. Campbell's Tn 
 
 L903, 5 F. 634, 784, 1041 
 
 v. Officers of State, 1868, 
 
 6 M. (H.L.)54, 10.37 
 
 Alison v. Robertson, 1890, Is 
 
 It. 212, 958 
 
 Allan v. Alexander's Trs. , 
 
 1908, 16 S.L.T. 191, 105 
 
 ■ ■ i'. Stott, 1893, 20 R. 804, 563 
 
 v. Thomson, IS K), 13 Jur. 
 
 619, 915 
 v. Wormer, Harris, & Co., 
 
 L894, 21 R. 866, 203 
 
 Allen v. Dundee Billposting 
 
 Co., 1912, S.C. 07o. 715 
 <fe Son Billposting, Ltd. v. 
 
 Edinburgh Corpn. 1 1908), 
 
 1909, S.C. 70, 1401 
 r. M'Combie'a Tru 
 
 1909, S.C. 7 in, 313 
 
 v. Tudhope, 1890, 
 
 S.C.R. -270, -I tut 
 
 Alston & Orr v. Allan's Trs., 
 
 loin. s.c. 304, 781 
 u. M'Dougal, 1887, 15 R. 
 
 78, 332 
 
 American Mortgage Co. v. 
 
 Sidway (1907), 1908, S.C. 
 
 500, 418, 595 
 
 Ammon v. Tod (1911). L912, 
 
 S.C. 306, s,>;; 
 
 Anderson v. Anderson, l 5 
 
 17 D. 804, 375 
 v. Blackwood, L885, 12 R. 
 
 1263, 1157 
 
 r. Conacher, L850, 13 
 
 D. 105, 1205 
 
 v. Dingwall Magistrates, 
 
 1823, 2 S. 116, 1177 
 
 NoTB.—The Nwmlera refer to Paragraphs not to i 
 
 A v. B, 1549, Mor. 7323, 
 
 1 11 
 
 1848, 11 D. 101, 
 
 82 
 
 A i; r. CD, 1848, 11 D. 289, 
 
 510 
 
 1903, L9 S.C.R. 268, 
 
 l:::, 
 
 1906, 8 1". 973, 791, 1224, 
 
 1225 
 
 1909, 25 S.C.R. 106, 
 
 784 
 
 Abel's Exrs. v. Edmond, L863, 
 
 
 1 M. 1061, 
 
 731 
 
 Aberchirder Magistrates v. 
 
 
 liantr District Com., 1900, 
 
 
 8 F. 571, 790 
 
 796 
 
 Aberdeen Harbour Com. v. 
 
 
 Adam, 1909, 2 S.L.T. 385, 
 
 315 
 
 Socy. of Solrs. v. Sym, 
 
 
 1877, 24 R. 511, 
 
 51 i 
 
 Abrahams, Ltd. v. Campbell 
 
 
 (1910), 1911, S.C. 353, 2S7 
 
 792 
 
 Accountant in Bankruptcy '■. 
 
 
 Davie, L884, 11 11. 1013, 
 
 923 
 
 Adam <■. Alloa Comrs., 187"', 
 
 
 2 R. 1 1:;. 
 
 no:; 
 
 v. Kinnes, 1883. 10 R. 
 
 
 070. 
 
 967 
 
 v. M'Lauchlan, 1847,9 D. 
 
 
 570, 
 
 570 
 
 Addison r. Brown, 1900, S K. 
 
 
 443 329, 331 
 
 338 
 
 Admiralty v. Aberdeen Steam 
 
 
 Trawling Co. (1908), 1909, 
 
 
 S.C. 335, 
 
 517 
 
 Advocate, Lord v. Reattie, 
 
 
 1856, is D. 378, 
 
 '.10 
 
 Pet,, 18S0, 8 R. 13 
 
 27 
 
 v. Edinburgh Conns, of 
 
 
 Supply, 1861, 23 D. 933, 
 
 139 
 
 v. Fleming, 1804, 2 M. 
 
 
 1032, 
 
 99 
 
 v. Heddle, 1856, 18 1). 
 
 
 1211, 
 
 455 
 
 i\ Hogarth, 1859, 21 1). 
 
 
 21:;, 
 
 99 
 
 v. Howieson, 1871, 2 Coup. 
 
 
 153, 
 
 492 
 
 v. M'Kenna, 1869, 1 Coup. 
 
 
 244, 
 
 492 
 
 v. Montgomery, 1855, 
 
 
 2 [rv. 222, ' 
 
 492 
 
 r. O'Neil & Gollan, 1858, 
 
 
 3 Lrv. 93, 
 
 192 
 
 v. Reid, L883,2Coup. 115, 
 
 491 
 
 v. Sheriff* Mitchell, 1866, 
 
 
 5 lrv. 226, 
 
 402 
 
 r. Sinclair, ls72, 11 M. 
 
 
 137, 
 
 1200 
 
 1: Stott, 1894, 1 Adam, 
 
 
 386, 
 
 492 
 
 v. White, 1842, 1 Broun 
 
 
 22S, 
 
 512
 
 696 
 
 INDEX OF CASES CITED. 
 
 Anderson v. Garson, 1875, 3 E. 
 254, 
 
 v. Earboe, 1871, 10 M. 
 
 - 17 ' 
 v . M'Farlane, 1899, 1 F. 
 
 (J.C.)36, 
 
 r. M'Gown, 1911, S.C. 
 
 It I, 
 
 v. Morrison, 1905, 7 F. 
 
 .Mil, 
 
 Trs. r. Skinner. L871, 8 
 
 S.L.R. 325, 
 
 Anglo-Foreign Banking Co., 
 1S79, 16 S.L.R. 731, 
 
 Angus Bros., Ltd. V. Crocket, 
 ' 1909, 25 S.C.R. 323, 
 
 Anstruther, 1838, 16 S. 1132, 
 
 Anterinony Coal Co. v. Win- 
 gate, 1866, 1 M. 544, 
 
 Archer's Trs. v. Alexander, 
 1911, 27 S.C.R. 11, 
 
 Argyle, Duke of, o. Mac- 
 arthur, 1861, 23 1). 1236, 
 
 Duke of, v. Muir (1909), 
 
 1910, S.C. 96, 285, 402, 716, 745 
 
 Arthur v. Dell, lSlili, 4 M. 841, 367 
 Assets Co., Ltd. v. Falla, 1894, 
 
 22 R. 178, 
 Aston v. Barclay, 1912, 29 
 
 S.C.R. 10, 
 Athole, Duke of, v. Robertson, 
 
 1869, 8 M. 290, 
 Austin v. Lambeth, 1857, 27 
 
 L.J. (Ch.)fi77, 
 
 367 
 
 189 
 496 
 
 no 
 52.") 
 242 
 666 
 
 693 
 
 1212 
 
 267 
 
 702 
 
 1196 
 
 221 
 172 
 
 140 
 1405 
 
 Baikie v. Doull, 1908, 24 
 
 S.C.R. 211, 504 
 
 Baillie v. Hume, 1 852, 15 D. 267, 202 
 Bain v. Lawson, 1899, 1 F. 576, 
 
 371, 607 
 
 v . Shand, is:!!!, 11 S. 688, 233 
 
 Baines & Tait v. Compagnie des 
 
 Mines D'Asphalte, 1879, 
 
 6 R. 846, 418 
 
 Baird v. Glendinning, 1874, 
 
 2 R. 25, 430, 736 
 r. M'Whinnie, 1908, S.C. 
 
 410, 899 
 & Stevenson v. O'Hare, 
 
 1911, 27 S.C.R. : 365, 1108 
 
 Balderstone, 1841,3 D. 597, 759 
 
 Balerno Paper Mills Co. v. Mac- 
 kenzie, 1SS2, 10 R. 1147, 430 
 Ballantyne v. Reddie, 1884, 
 
 22 S.L.R. 136 464 
 
 Bank of Scotland v. Comrie, 
 
 1871-8, S.L.R. 419, 076 
 v. Rorie, 1908, 16 S.L.T. 
 
 130, 265 
 
 Bannatyne & Co. v. Goodwins, 
 
 Jardine, & Co. in Liqn. 
 
 1907, S.C. 705, 64 
 v. M'Lean, 1884, 11 R. 
 
 6S1, 801 
 
 Bannatyne v. Xewendorff & 
 
 Berry, 1841, 3 D. 429, 214 
 
 Barclay '/•. Bruce, 1904, 12 
 
 S.L.T. 100, 461 
 Curie, r. Laing (19i»7), 
 
 S.C. 1908, 82, 194,418 
 
 Barr i>. Queensferry Conns., 
 
 1899, 1 1'. 630, 465 
 
 Barrie v. Caly. Rly. Co., 1902, 
 
 5 F. 30, 819 
 
 Barrett V. North British Rail- 
 way Co., 1899, 1 K. 1139, 232 
 Barstow v. Smith, 1851, 13 D. 
 
 854, 267, 269 
 v . Hutcheson, 1849, 111). 
 
 687, 939 
 
 Bayne /•. M'Gregor, 18(i2, 24 1). 
 
 1126, 68 
 
 Beattie v. M'Lellan, 1844, 6 D. 
 
 1088, 627 
 v. Paterson, 1863, 35 
 
 Jur. ISO, 516 
 
 v . Rodger, 1835, 14 S. 6, 1204 
 
 Belfrage v. Davidson, 1862, 24 
 
 D 1132, 139 
 
 Bell v. Goodall, 1883, 10 R. 
 
 905, 789 
 
 v. Gunn, 1859, 12 D. 1003, 1031 
 
 v. Hamilton's Trs., 1889, 
 
 16 R. 1001, 482 
 Trs. r. Bell's Trustee, 
 
 1882, 10 R. 370, 961 
 Bennie v. Mack, 1S32, 10 S. 
 
 255, 570 
 
 Beresford's Trustees v. Gard- 
 iner, 1877, 4R. 1091, 1019 
 Bernstein v. Holloway, 1909, 26 
 
 S.C.R. 32, 406,1143 
 
 Bertram v. Stewart, 1874, 2 R. 
 
 255, 579 
 Berwickshire Road Trs. V. 
 
 Martin, 1885, 1 S.C.R. 387, 
 
 1444, 1447 
 Biggart v. City Bank, 1879, 
 
 6 R. 470, 229 
 
 Binnie's Trs. v. Henry's Trs., 
 
 1883, 10 R. 1075, 673 
 Bird v. Brown, 1887, 25 S.L.R. 
 
 1, 205, 219 
 
 Birkbeck, 1874, L.R. 6 Q.B., 
 
 256, 1379 
 Birrell v. Taylor, 1884, 12 R. 
 
 151, 716 
 
 Black v. Humphrey, 1911, S.C. 
 
 618, 912, 967 
 v. Laidlaw, 1844, 6 I). 
 
 1254, 69 
 
 Blaikie v. Duncan, 1857, 19 D. 
 
 983, 507 
 
 Blair's Trs. v. Blair, 1863, 2 
 
 M. 284, 672 
 v. M'Phun, 1856, 18 D. 
 
 1 21 >2, 575 
 
 Blantyre, Lord v. Lord Adv., 
 
 1876, 13 S.L.R, 213, 585 
 
 Note. — The Numbers refer to PARAGRAPHS not to Pages.
 
 I\hi:.\ OF CASKS CITED. 
 
 697 
 
 Blisset'a Trs. v. Hope's Trs., 
 
 is, i, 16 D. 482, 321 
 
 Blow v. Ecuadorian Associa 
 
 tion, Ltd., 1903, 5 I'. i n, 270 
 Bonnar v. Simpson, &c, 1836, I 
 
 Swin. 39, 196 
 
 Borthw iok v. Scott ish Widows' 
 
 I'uikI Assir. Co., 1864, 2 
 
 M. 595, L39 
 
 Boawell'sTrs. v. Pearson, 1885, 
 
 24 S.L.R. 32, L204 
 
 Boyd's Trs. v. Boyd, 1906, 13 
 
 S.L.T. 878, 668, 672 
 
 Braby v. Dunks, L907, L5 
 
 S.L.T. 161, 191, lis 
 
 Brady v. Story, 1896, 3 S.L.T. 
 
 325, 413 
 
 Brash v. ffoey, L888, 15R. 583, U.i I 
 Bridge v. South Portland Street 
 
 Synagogue, 19i>7, S.C. 
 
 1351, 262 
 
 Brims .v Mackay v. Patullo, 
 
 1907, s.c. L106, :ill 
 
 British Linen Bank v. Kansas 
 
 Investment Co., 1895, '■> 
 
 S.L.T. 138, 647 
 
 Broatch v. Dodds, 1892, 1!) It. 
 
 855, 57"> 
 
 v. Pattison, 1898, 1 F. 303, 
 
 980, 983 
 Brock r. Itankine, Is ,4, 1 R. 
 
 991, 1207 
 
 Brodie v. M'Gregor, 1901, 4 F. 
 
 93, 815 
 
 Brooke, Lord v. Marquis of 
 
 Huntly, 1911, 49 S.L.R. 
 
 71, 605 
 
 Brown v. Bayley's Trs. (1909), 
 
 1910, S.C. 76, 945 
 v. Blackie, 1850, 23 Jur. 
 
 47, 650 
 
 r. Blaikie, 1849, 11 D. 474 364 
 
 v. Browu, 19(Hi. 8 F. 687, 1157 
 
 r. Cormack, 1909, 1 S.L.T. 
 
 247, 612 
 
 ,•. Edgley, 1843, 5 1). 587, 576 
 
 v. Goalen, 1827, 5 S. 51 l, 464 
 
 v , Gordon, 1870, 8 M. 432, 563 
 
 v. Inland Rev., L897, 35 
 
 S.L.R. 340, 517 
 
 v. Lindley, is:;::. 12 S. is, 267 
 
 v. M'Allan, 1 8 15, 7 I ». 423, 162 
 
 v. Mitchell (1909), 1910, 
 
 S.C. 369, 1237 
 v. Port Seton Earbour 
 
 Comrs., 1899, 1 F., 373, 647 
 v. Scott, 1 s.v.i. 22 I). 273, 1210 
 
 v. Scotl Gibson, 1909, 26 
 
 S.C.R. a:\ 1380 
 Trs. v. Frazer, 1870, 8 M. 
 
 820, 95 
 Trs. v. Home L907, S.C. 
 
 1027, 155 
 Trs. v. Milne, L897, 21 R. 
 
 1139, 371,607 
 
 Brown .V i !o., Ltd. v. Orr, 1910, 
 
 s.C 526, 
 Broxbui n i iil < '<>. v. Moi i i 
 
 L903, 5 I. 694, 
 Bruoew. Bruce, 1883, 1 1 R. 192, 
 
 894 
 
 161 
 
 1190 
 1210 
 
 v. Grant, 1824, 2 s. 552, 
 
 Bi ydon < . \\ ,. t u [ane, 1864, 
 
 3 M. 7, 716 
 
 Bryson '-. Belhaven Mol 
 
 Ltd., 1908, 15S.L.T. 1043, 354 
 Buccleuch, I luke oi v. ( low an, 
 
 1866, t M. 475, 422 
 
 v. Cowan, L876, I R. 
 
 (ILL.) 14, 311 
 
 Buchan v. < irimaldi, 1905, - F. 
 
 917, li, s, 210 
 
 Buchanan v. Ballantine i L910), 
 
 lull. s.c. 1368, 1160 
 
 v. Black, L882, 9 It. 926, 7>-ir> 
 
 v. Douglas, is:,::, 15 D. 
 
 365, 7-': I 
 v. Keating, ls. _ )4, 17 D. 
 
 155, ill 
 
 Buik v. Patullo, 1855, 17 D. 
 
 v;s, 265 
 
 Bulloch v. Pollock, 1887, 3 
 
 S.C. It. 249, L185 
 
 Burnett v. Murray, 1S77, 14 
 
 S.L.I I. 616, 228 
 
 Burns v. Burns, 1862, 34 Jur. 
 
 42i ;. 603 
 
 v. Burns, 1879, 7 R. 355, 
 
 634, 699, 1223 
 
 v. Gillies, 1906, 8 F. 160, 650 
 
 V. Monro, 1844, 6 I >. 1352, 196 
 
 ,-. WaddeU, L897, 21 R. 
 
 325, 730 
 
 Hurt r. Bell, 1863, I M. 382, 944 
 
 Busby v. Clark. 1904,7 F. 162, 
 
 328, 343 
 
 (..'adder Loc. Authority, 1879, 
 
 6 R. L242, 1121 
 Cairdu Paul, 1888, 15R.313, 983 
 r. Sime, 1887, 1 1 R (ILL.) 
 
 37, 601 
 
 Cahler r. Montgomery, 1845, 
 
 17 Jur. 272. 519, 521 
 
 Calderhead's Trs. v. Fyfe, 
 
 1832, ms. 582, 238 
 
 Caldwell r. Dykes, 1906, 8 F. 
 
 839, 800 
 
 Caledon Shipbuilding Co. v. 
 
 Kenned.v, 1906, 8 F. 597, B 7 
 
 Caledonian Rly. ( !o. V. • rlas 
 
 Corpn., 1900, 2 F 871, 730 
 ,-. Crockett, 1902, L0 
 
 S.L.T. 89, 414 
 r. Glasgow Corpn., 1906, 8 
 
 F. 55, 1 Hi5 
 r. Ramsay, 1897, 21 R. 
 
 (.LC. 1 is, 139 
 r. Symington, 1912, -s.c. 
 
 1033, 51 
 
 NoTB.—The Numbers refer to Paragraphs not to
 
 698 
 
 INDEX OF CASES CITED. 
 
 Cal. & Dam. Railw ly ( !o. v. 
 
 Turner, 1849, 12D. 406, 267 
 
 Callender p. Pollock, 1905, 22 
 
 S.C.R. IT::. L65 
 
 ( !allendei -, s i lable i !o. v. 
 
 Glasgow Corpn., 1900.2F. 
 
 397, 130 
 
 ( lameron v. Anderson, 1844, 7 
 
 I). 100, 462 
 v. Armstrong, 1851, 
 
 13 1>. 1256, 576 
 ,-. Chapman, 1838, I (J S. 
 
 907, 189 
 ,-. Morti r, 1872, 10 M. 
 
 si 7. 69 
 
 Cammick v. Glasgow Iron Co., 
 
 1901, I K. 198, st;; 
 
 Campbell v. Campbell, 1866, 4 
 
 M. 867, 138 
 
 Campbell's Exrs. v. Campbell's 
 
 Trs., 1898, 25 R. 687, 618 
 p. Lothians, 1858, 21 I). 
 
 63, 047 
 v. M'Alister, 1893, 1 
 
 S.L.T. 14, 315 
 
 v. Paul, 1835, 13 S. 237, 1210 
 
 v. Ritchie & Co., 1907. 
 
 S.C. 1097, 819 
 
 r. Train (1909), 1910, 
 
 S.C. I 17, 711, Tlii 
 Trs. v. O'Neil (1910), 
 
 1911, s.c. ins, 986, 990 
 
 Cant v. Pirnie's Trs., 1906,8F. 
 
 1120, 1164 
 
 Carlberg v. Borjesson, 1871,5 
 
 R. 188, 390 
 
 p. Borjesson, 1878, 
 
 5 R. (H.L.)215, 055 
 
 Can- & Sons v. M'Lennan, 
 
 Blair & Co., 1885, 1 S.C.R. 
 
 262, 270 
 
 Carrigan v. Clelland, 1907, 15 
 
 S.L.T. 543, 235 
 v. Philips, 1905, 21 
 
 S.C.R. 335, 204 
 
 Carron Co. v. Currie, 1896,33 
 
 S.L.R. 578, 650 
 
 Carroll /-.Cray, I9I<>, S.C. 700, 869 
 Carruthers v. Carruthers, 1897, 
 
 24 R. 363, til 
 
 Carsewell v. Finlay, 1887, 14 
 
 R. 903, 479 
 
 Caison v. M'Dowall, 1908, 24 
 
 S.C.K. 324, (Hi 
 
 Casey v. United Collieries Co. , 
 
 1907, S.C. 690, sis 
 
 Cassels v. Lamb, 18S5, 12 R. 759, 1011 
 Cassidy v. Bilsland, 1907, 15 
 
 S.L.T. 615, 600 
 
 Cassilis v. Absolon, 1907, 15 
 
 S.L.T. 48, 523 
 Countess of v. Earl of 
 
 Roxburgh, 1079, Mor. 3695, 348 
 Cat heart v. Scott, 1908, 25 
 
 S.C.R. IH, 172, 313 
 
 Caughie v. Robertson, 1897, 
 
 25 EC 1, 206 
 
 Chambers v. Chambers, 1839, 
 
 I D. 911, 621 
 
 Cheyne v. M 'dingle, 1860, 
 
 22 1). 1490, 38 
 
 Christie v. Birrell, 1910, S.C. 
 
 986, lot, 406, 1141 
 v. Lowden, 1890, 6 S.C.R. 
 
 140, 097, 11^4 
 v. Munro, 1885, 23 S.L.R. 
 
 267, 182 
 
 v. Ruxton, 1862, 24 1). 
 
 1182, 61 
 
 i Ihrystal v. Chrystal, 1900, 2F. 
 
 373, 399 
 
 i Hark Kennedy v Clark Ken- 
 
 ne.lv, 1908, L5S.L.T. 844, 335 
 Clark v. Cuthbertson, 1848, 
 
 10 I). 1471, 934 
 
 v. Duncan, 1833, 12 S. 
 
 158, 1041 
 
 v. Grangemouth Iron Co., 
 
 1908, 24S.C.R. 185, 860 
 
 v. Hamilton, 1S7">, 3 R. 
 
 166, 24 
 v. Henderson, 1875, 2 R. 
 
 42S, 803 
 ■ r. Law, 1887, 3 S.C.R. 
 
 360, 129 
 
 v. Loos, 1853, 15 D. 
 
 75< I, 655 
 V. Melville, 18S0, ,8 R. 
 
 81, 1193 
 V. Mailer, 1SS4, 11 R. 
 
 418, 225 
 v. National Bank, 1890,27 
 
 S.L.R. 628, 191 
 & Macdonald v. Bain, 
 
 1895, 23 R, 102, 603 
 v. Macdonald & Schulze, 
 
 1902, 4 F. 448, 65 
 v. Stirling, 1839, 1 1). 
 
 970, 1196 
 
 Clason r. Black, 1842, 4 D. 
 
 743, 32 
 
 Clayson v. Kennedy, 1910, 26 
 
 S.C.R. 117, 966 
 
 Clippens Oil Co. v. Edinburgh 
 
 Water Trs., 1904, 12S.L.T. 
 
 40, 482 
 
 Clydesdale Hank v. Russell, 
 
 1859, 21 1). 886, 672 
 
 Coakley v. Addie & Sons, Ltd.. 
 
 1909, S.C. 545, 894 
 
 Cochran v. M'Vean, 190S, 24 
 
 S.C.R. 105, S60 
 
 Cocker v. Crombie, 1893, 20 R. 
 
 954, 1174 
 
 Cofton v. Cofton, 1875, 2 R. 
 
 599, 308 
 
 Commercial Rank r. Muir, 
 
 1897, 25 R. 219, 072 
 
 Cook r. Ronnvhridge Silica Co. 
 
 (1910), 1911, S.C. 177, 821 
 
 Xute. — The Numbers refer to Paragraphs not to Pages.
 
 i.\i)i;.\ OF CASES < i n.i». 
 
 
 Cook v. M'Neil, 1906, S F. 
 
 (J.C.) 57, 194 
 v. Sinclair, 1896, 23 R. 
 
 925, 97 
 v. Wallace* Wih 1889, 
 
 16 R. 565, lis I 
 
 v. Cullen, ls7L I R. I L01, :>:;n 
 
 Colonial Mutual Life Assce. 
 -■. Brown, 1911, 18 
 
 S.L.R. 127, 672 
 
 Conacher <•. Robertson, ls-_".t, 
 
 s s. 141, 576 
 
 v. Conacher, 1859, 21 D. 
 
 597, 573 
 
 Council's Trs. i'. I IS , 8, 
 
 5 R. 735, 676 
 
 Couroy i\ Inglis, 1895, 22 R. 
 
 621, 754 
 
 Cooper v. Frame, 1893, 20 R. 
 
 920, 226 
 
 r. Frazer, 1872, 11 M. 38, '.'.V, 
 
 Cornforth v. Powell, 1896, 12 
 
 S.C.R. 200, 967 
 
 ( lorstorpbine '•. Kast< n, 1898, 
 
 1 F. 287, 168 
 Couper v. Bain, lsr.s. 7 M. [02, :;:; 
 v. Young, 1849, 12 I'. 
 
 I!iii, 516 
 
 Cowan v. Farnie, 1836, 1 1 S. 
 
 634, 69, S04 
 
 v. Western Bank, I860, 
 
 22 I ». 1 260, 
 
 Cowan's Trs. ''. Cowan, 1886, 
 
 l»i R. 7, 
 Cowie v. Merry, 1828, 7 S. 23, 
 Coynr '-. Glasgow Strain 
 
 Coasters, Ltd., 1907, S.C. 
 
 112, 
 Craig v. Brunsgaard & Kjos 
 
 ternd, 1896, •-':! R. 500, 
 
 L87, 197 
 v. Campbell and Others, 
 
 I'.ill, is s.l..!;. 121, lino 
 
 V. Craig, 19(J6, 14 S.I.. I 1 . 
 
 Hid, Milt, 806 
 v. X. I:. Rly. Co., 1888, 
 
 15 II. 808, _ 413, 515 
 
 Cranston '•. Mallow & Lien, 
 
 1911, S.C. I i::::. 
 Craven v. Dalbeattie Magis- 
 trates, 1908, 25S.C.R. 109, 
 Crawford v. Smith, 1900, 8 
 
 S.L I'. -2V.K 
 Crerar '■. Moi rison, 1889, 9 R. 
 
 890, 
 Crossan v. I laledonian Rly. 
 
 Co., 1902, •". F. 1^7. 
 Cullen v. Smith, 1847,9 I >. 606, 
 
 /•. Thomson, l s ii.">, 1 M. 
 
 284, 524 
 
 Culross Water District Com. 
 
 v. Sligo Trs., L891, 19 R. 
 
 58, 209 
 
 Cumming v. Williamson, 1842, 
 
 4 D. 1304, 1 35 
 
 435 
 
 675 
 
 4(11 
 
 895 
 
 744 
 592 
 803 
 
 .•500 
 
 797 
 33 
 
 Cunningham v. Black, 1883, I<> 
 
 i:. 1H, 711 
 
 ,-. Smith, Issu, 7 l:. l-'l. 
 
 Cuthl>ertson <•. Gibson, 
 
 ill: 
 
 v. Todd, 1908, _'i - < .1:. 
 
 378, 
 
 . Voung, I s.M, 1:; I). 1308, 154 
 
 Dabocca v. Millar, 1905, 21 
 
 S.C.R. Is::. 1122 
 
 bieson, 1902, In 
 S.L. I\ 56, IN 
 
 w.Mitchell, 1886 23 S.L. R. 
 
 552, 
 
 ,.. Scott, 1822, I S. 506, 345 
 
 & Kerr v. And< 
 
 20 S.L.R. 412, 11">7 
 
 Dallas v. M inn, 1853, 15 1 ». 
 
 746, -7 
 
 ,1908, 
 15 S.L. I'. 1046, 265 
 
 Dampskibselskabel Nordssen '•. 
 Mackie,K< th &Co., (1910) 
 1911. S.C. 17--'. 642 
 
 I tarngavil < !oal < lo. r. John- 
 stone, 1909, 25 S.C.R. 228, 
 
 Darroch v. Kerr, 1901, 4 F. 396, 
 
 550, 55 1 
 
 Davidson v. Charteris, 1738, 
 
 Mor. 16899, 346 
 
 V. Davidson, 1891, 18 R. 
 
 884, 10, 157, 310 
 
 v. Ewen, 1895, 3 S.L.T. 
 
 162, 676 
 
 ».Gourlay,1906,22S.C.R. 
 
 242, 205,219 
 ,-. Jenkins, 1844, 6 D. 
 
 765, 1363 
 
 Davie V. Lai, lax, L871, 9 M. 
 
 726, 603 
 
 ,. stark, 1876,3 K. 1114, 450 
 
 Davies v. Blake, 1908,16 S.L. T. 
 
 262, 612 
 
 Dawkins v. Paulet, L.R. 5Q.B. 
 
 121, M s 
 
 Daws Stewart ,V Shaw. 
 
 1905, 7 F. 7o'.i, 
 D'ErnesW ». D'Erni Bte, 1882, 
 
 «.i R. 655, 265 
 
 Delvoitte v. Baillie's Trs. 1877, 
 
 5 R 143, 931, 935 
 
 I »i in v. Daish, 1897, 24 K. 
 
 976, 270 
 
 Devlin /-. Spinelli, 1906, 14 
 
 S.L.T. '.», 
 I >ewar r. Pearson, 1866, I M. 
 
 193, 574 
 
 Dick v. Blairgowrie Town 
 
 Council, 1910, 27 S.C.R 
 
 243, 504 
 
 „. Button, 1876, 3 R. 148, 570 
 
 Dick & Stevenson v. Mackaj . 
 
 1880,7 R. 778, 553, 80 
 
 Notb.—T1u Numbers refer to Pabagrapbs not lo .
 
 ■oo 
 
 1NDKX OF CASKS CITKD. 
 
 ■ ii v. Mitchell, &c, 1910, 
 S.C. I.'i'.i, 199 
 
 Dixon r. Greenock Distillery 
 
 Co., 1867, •"> M. L033, 946 
 
 v. Murray, LS94, 1 S.L.T. 
 
 600, 805 
 
 Trs. v. Campbell, 1867, 
 5 M. 767, 954 
 
 Docherty v. Docherty, 1908, 24 
 
 S.C.R. 1'20, 91 
 
 r. M -Alpine, L899, 2 1'. 
 
 128, 137 
 
 I).»n r. Don, 1848, 10 D., 1046, 549 
 
 Donald u Donald, L912, 2 
 
 S.L.T. 136, 4(12 
 
 - v. Donald, 1912, 50 S.L.R. 
 
 155, 96 
 
 — v. Leitch, 1886, 13 11. 790, 1032 
 Donaldson v. Findlay, 1864, 
 
 2 M. (H.L.) 86, ' 305 
 v. Manchester Assurance 
 
 Co., 1833, 11 S. 570, 516 
 
 v. Ord, L855, 27 Jur. 625, 660 
 
 Douglas, Marquis of, and 
 
 Others, v. Earl of Dal- 
 
 housie, 1.1th Nov., 1811, 
 
 P.O., 593 
 r. M'Kinlay, 1902, 5 F. 
 
 260, 225 
 
 v. Tait, 1SS4, 12 R. 10, 311 
 
 Downie v. Fisherrow Harbour 
 
 Trs., 1903, 5 F. (J.C.) 101, 139 
 
 — r. Rae, 1832, 11 S. 51, 080 
 Drew v. Robertson, 1903, 11 
 
 S.L.T. 31, 226, 788 
 
 Drummond v. Hunter, 1869, 7 
 
 M. 347, 716 
 
 v. Leslie, 1835, 13 S. 684, 457 
 
 Dumfries County Council v. 
 
 Langholm Mags., 1912,50 
 
 S.L.R.209, 759 
 Local Authority v. 
 
 .Murphy, 1884, II R. 694, 1417 
 Dunbar v. Dunbar (1911), 1912, 
 
 S.C. 19, 80 
 
 Duncan v. Fife Coal Co., 1905, 
 
 7 F. 958, 437 
 
 Duncan's Factor v. Duncan, 
 
 1874, I K. 964, 680 
 
 Dundonald Parish Council v. 
 
 ( hroningham Poorhouse 
 
 ( lommissioners, lilt)!*, S.( '. 
 
 829, 311 
 
 Dymond v. Scott, 1S77, 5 R. 
 
 L96, 073,675 
 
 Dyson v. Hyson, 1909, 2 S.L.T. 
 
 404, 160 
 
 Eadie v. Glasgow Corporation 
 
 (1907), 1908, S.C, 2H7, 202, 1383 
 
 Ebbw. Vale Co. V. Murray, 
 
 1898, 25 R. 925, sll 
 
 Edinhurgh and Olasguw Canal 
 Co. v. Carmichael, IS 12 
 (H.L.) 15 Jur. 193, 305 
 
 Edinburgh Oil Gas Co. v. 
 
 e, &c, is:::., 13 S. 
 
 H3, 457 
 ■ Property Society p. White, 
 
 L906, 8 P. 903, ' 316 
 Water Trust v. Clippens 
 
 Oil C<»., I'll i2, I F. (H.L), 10, 157 
 Edington v. Astley, 1829, 8 S. 
 
 192, 603 
 
 Egleton v. Flowerdew, 1849, 
 
 11 1). 1 186, 419 
 
 Ellerman Lines, Ltd. v. Clyde 
 
 Trs. and Others. L909, S.C. 
 
 090, 206, 311, 312, 753 
 
 Elliot r. Elliot, 1893, I S.L.T. 
 
 261, 803 
 Ellis v. Ellis, 1870, 8 M., 805, 586 
 ,.. Menzies, 1901, 9 S.L.T. 
 
 204, 653 
 
 Ellison v. Ellison, 1901, 4 F. 
 
 257, 306,634 
 
 Elmslie v. Alexander, 1S62, 
 
 1 M. 209, 494 
 
 Erskine v. Walker's Trs., 1883, 
 
 LOR. 717, 268 
 
 Falconer ''. Shields & Co., 
 
 1827, a S. 853, 734 
 
 Farquhar v. Farquhar, 1880, 
 
 13 R. 596, 579 
 
 Faulks v. Park, 1854, 17 D. 
 
 247, 4D3 
 
 Ferguson v. Both well, 1882, 9 
 
 R. 6S7, 671 
 
 ,-. l) V er, 1S82, 9 R. 671, ISO 
 
 v. Johnstone, 1886, 13 R. 
 
 635, 811 
 Fife v. Orr, 1895, 23 R. 8, 1196 
 Coal Co. v. Bernard's Trs. , 
 
 1907, S.C. 494, 129 
 
 Finlay & Co. v. Donaldson, 
 
 1846, 5 Bell's app. ca. 105, 43.") 
 
 ,.. Outram, 1S.M, 14 1). 48, .".76 
 
 Fischer v. Anderson, 1896, 23 
 
 R. 395, 271,588 
 
 Flemingv. Blackwood, 1908. 21 
 
 S.C.K. Ill, 873 
 
 v. Dickson, 1802, 1 M. 188 
 
 15, 24 
 r. Gemmill, 1908, S.C. 
 
 340, 206, 313 
 r . Hislop, 18S6, 13 R. 
 
 (H.L.) 13, 1413 
 v. M'Lagan, 1879, 6 R. 
 
 588, 130 
 
 Fletcher v. Davidson, 1874, 2 
 
 R. 71 986, 1024 
 
 Fletcher's Trs. /•. Fletcher, 
 
 1SS8, 15 R. S62, 790 
 
 Flynn, 1909, 25 S.C.R. 103, 974 
 
 Forbes v. (Jnderwood, 18S0, 
 
 13 R. 465 1195 
 
 Forgie v. Stewart & Macdonald, 
 
 1876, 3 R. 1149, 1176 
 
 Note.— The Numbers refer to Paragraphs not to Pages.
 
 INDIA OF CASES CITED. 
 
 701 
 
 ■ p. Dunlop, Is7">, 3 R. 
 
 is, 607 
 
 I est v. Forrest, L863, I M. 
 
 mm;, [86, 1073 
 
 v. Low, 1907.S.C. L240, 
 
 th 17. Aii. I. L853, 26 Jur. 
 
 97, 1022 
 17. Hare & Co., 1834, 13 8. 
 
 12, 250 
 
 Pram esco p. I >e Meo, 1907, 15 
 
 S.L.T. 387, 512 
 Frazer, 1840, 2 S. L254, 137 
 17. I lam i. 1892, I!) R. 
 
 564, 8 I 7 
 
 ,. Dunbar, L839, 1 D. 882, 244 
 
 ,.. Frazer's Trs., 1897, I 
 
 S.L.T. 228, 515 
 17. Ma Malloch, 
 
 1896. 23 R. 619, 318, 320 
 
 ,-. Macintosh. 1901, 9 
 
 S.L.T. NT. 1155 
 v. Mackenzie, 1874, 12 
 
 S.L.R. 74, 
 - (7. Sandeman, L836, 14 D. 
 
 377, 516 
 
 Fraser p. Stronach, 1885, 23 
 
 S.L.R. 76, 503 
 
 Free Church of Scotland p. 
 
 Macrae, 1905, 7 F. 686, 139 
 
 Freebairn v. Kilsyth Burgh, 
 
 1895, II S.C.R. 257, L402 
 
 Fulton 17. Far] of Eglinton, 
 
 1878,5 R. 752, 1193 
 
 Fulwood r. Dumfries Harbour, 
 
 Corns.. L907, S.C. 735, 796 
 
 Fyffe p. Fyffe, L840, 2 D. 1001, 462 
 
 Gadois p. Baird, 1856, 28 Jur. 
 
 682, 1207 
 
 Gairdner r. Young, 1874, 2 R. 
 
 173, 556 
 Gall v. Gall, L870, 9 M. 177, 551 
 17. Loval Glenbogie Lodge, 
 
 1900, 2 F. 1187, 1174 
 
 Galloway, Earl of, p. Grant, 
 
 18.37, 19 1). m;.->, 44.. 
 u. M'Pherson, 1830, 18 S. 
 
 539, 1038 
 
 Gardiner v. Brand & Son, 1910, 
 
 26 S.C.R. 23, s ss 
 
 Garrioch p. class (1910), 1911, 
 
 S.C 453, 730 
 
 Gas Power, &c, Co., Ltd. p. 
 
 Beardmore (1910), 1911, 
 
 S.C. 27, H97 
 
 ( tatherar p. Muirhead & Turn- 
 bull, L909, 25 S.C.R. 357, 1130 
 Gatt 17. Angus Shipping Co., 
 
 L907, 11 S.L.T. 749, 122 
 
 Gavin p. P. Hendei son & * !o., 
 
 1910, S.C. 357, 313 
 
 Geils p. Ceils, is;,:,, IT 1 >. 397, 546 
 ( ielston 17. ( ihristie, 1875, 2 K. 
 
 982, 399 
 
 m i7. Andei i 1 9 D. 
 
 I, 
 p. Caledonian Railway I 
 
 1896, 33 S.L.R 
 
 „. ci.nk, L895, 23 R. 294, 
 
 328 
 p. Ewan, 1852, 25 Jur. 
 
 163, 
 v Macqueen, I stir,, .'> M. 
 
 113, 
 
 ,.. Smith, 1870, B M. II"-, 
 
 i'. Wi on Co., 
 
 L887, 14 R. 578, 
 Gifford p. Rennie, Is:,::, 15 D. 
 
 451, 
 Gilmour p. Donnelly, 1899, 7 
 
 S.L.T. 267, 
 Gill p. Cuthr, Ism:,. 23 K. 371, 
 Trs. v. Maxwell's Ti . 
 
 1889, 16 R. 103, 
 p. Patrick, 1889, 16 R. 
 
 103, 
 Gillan p. Barony Parish, 1898, 
 
 I F. 183, 
 
 p. Christ ison, 1909, 25 
 
 S.C.R. 283, 
 
 Gird wood p. Hercules Insur- 
 ance Co., 1833, 11 S. 351, 
 
 dw Corporation p. Camp- 
 bell, &c, 1898, 25 R. 690, 
 
 r . Watson, 1898,25 R.b90, 
 
 City and District Railway 
 
 Co. p. Glasgow Coal Ex- 
 change, 1885, 12 R. 1287, 
 
 District Railway Co. P. 
 
 Hutchisons Trs., 1884, 
 
 II R. (J.C. 
 
 District Subway Co. <: 
 
 1 .1 isgow Corporation, 1893, 
 
 21 R. 52, 
 Faculty of Procurators p. 
 
 Colquhoun, 1900, 2 F. 
 1192, 
 GasC<>. p. Working Men's 
 
 Ab. Society, 1866, 1 M. 
 
 1041, 
 Glen p. Black, 1841, 4 1). 36, 
 Glen's Trs. p. Glen, &c, 1911, 
 
 S.C. 1178, 
 Glenday o Johnstone, L905, 
 
 s F. 21, 134, 
 
 Glengarnock Iron < !o. ■■. < !o 
 Co., ls!i:,. 22 R, 672, 
 Goodall p. Bilsland, &o., 1909, 
 
 s.c. L152, 
 ,-. Forbes, 191 
 
 1300, 
 Goodwin p Purfiold, 1871, L0 
 
 M. 214, 
 < lordon v Davidson, 1865, •': M. 
 
 v Duncan, 1827, S S. 511, 
 
 v < lordon's Trs. . I S 
 
 4 M. 501, 
 pSuttie, 1836, 1 \ S. 954, 
 
 •"■17 
 517 
 
 52 1 
 311 
 
 810 
 
 230 
 
 225 
 1 199 
 
 666 
 
 673 
 
 92 
 
 691 
 
 in:, 
 
 637 
 1196 
 1115 
 
 767 
 
 56 
 
 601 
 32 
 
 672 
 
 list 
 
 563 
 
 139 
 
 313 
 
 189 
 
 52 1 
 699 
 
 138 
 1032 
 
 WoTB.—Tht Numbers refer to Paragraphs not to P
 
 •02 
 
 [NDEX OF CASES CITED. 
 
 Gordon's Trs. v Forbes, L904, 
 
 6 !'. 455, 673 
 ,-. M'Gregor, 1895, 32 
 
 S.L.R. 257, 970 
 
 Govau Commissioners v. ('lurk, 
 
 1889, 5 S.C.R. 156, L388 
 Old Victualling Socy., 
 
 Ltd., r. Wagstaff, 1907, 
 
 14S.L.R. 295, 4:;: 
 
 Govv v. Thomson, L895 (J.C.), 
 
 1 Adam 534, 022 
 < traham v. Bell, 1875, 2 R. 972, 627 
 v. Borthwick, 1875, 2 R. 
 
 812, 530 
 Grahame v. Kirkcaldy Magis- 
 trates, 1882,9R.(H.L.)91, 1175 
 v. Macfarlane, 1869, 7 M. 
 
 640, 650 
 
 v. Sprot, 1847, 9 D. 545, 
 
 515, 549 
 ■„. Western Bank, 1865, 3 
 
 M. 617, 494,546 
 
 Grant*. Grant, 1908, 24 S.C.R. 
 
 114, 353,1217 
 ,,. Grant, 1905, 43 S.L.R. 
 
 109, 791 
 „. Wood, 1902, 10 S.L.T. 
 
 296, 311 
 
 Gray v. Hamilton, 1840, 2D. 
 
 1205, 229 
 
 — „. Weir, 1891, 19 R. 25, 1035 
 Greenock and Port-Glasgow 
 
 Tram. Co. v. Rankin & 
 
 Blackmore, 1913, 29 S.C.R. 
 
 30, 1414 
 
 (brieve's Trs. v. Grieve, 1907, 
 
 S.C. 963, 805 
 
 < : uild V. Wright, 1878, 6 R. 289, 929 
 Gunn v. Hunter, 1886, 13 R. 
 
 573, 403, 814 
 
 Guthrie v. Guthrie, 1906, 8 F. 
 
 545, 92 
 
 v. Miller, 1826, 5 S. 711, 
 
 759, 1405 
 
 Halliday v. Halliday's Exrs., 
 
 1886, 14 R. 251, 172, 180 
 
 Hall v. Incorporated Law 
 
 Society, 1901, 3 F. L059, 57 
 
 Hamilton v. Allan, 1861, 23 I). 
 
 589, 1200 
 v . Bain, 1857, 1 Guth. Sel. 
 
 Cas. 405, 44 
 
 v. Elmslie, 1868, 7 M. 173, 68 
 
 v. Murray, 1830, 9 S. 143, 440 
 
 v. Perth Commissioners, 
 
 1898, U S.C.R. 325, 1404 
 
 — (Duke of) Trs. v. Woodside 
 
 Coal Co., 1897, 24 R. 294, 506 
 - Trs. v. Wright & Sharp, 
 
 1880, 7 R. 460, 90 
 
 Hummel & Brand v. Shaw, 
 
 1888, 15 R. 449, 92 
 
 Hanna v. Neilson, 1849, 11 D. 
 
 941, 364 
 
 Harker v. Dickson, 1856, 18 1). 
 
 79:; 269 
 
 Harris v. Gillespie, 1875, 2 R. 
 
 1003, 175, 178 
 
 Harvey v. Harvey's Trs., 1860, 
 
 22 1). 1310, 130 
 
 Harvie v. Smith, 1908, S.C. 474 967 
 Hastings v. Chalmers, 1890, 
 
 18 R. 244, 517 
 
 Hattie v. Leitch, 18S9, 5 S.C.R. 
 
 333, 481 
 
 Hay v. Buchanan, 182:5, 2 S. 
 
 112, 1176 
 v. Dafourcet, 1880, 7 It. 
 
 972, 650 
 
 v. Hay, 1882,9 R. 667, 85, 1186 
 
 Trs. v. London & North- 
 western Railway Co., 
 
 1909, S.C. 1074, 178 
 Heddle v. Garrioch, 1S27, 5 S. 
 
 503, 27 
 
 Henderson V. A B, 1908, 24 
 
 S.C.R. 40, 1198 
 
 „. Grant, 1896, 23 R. 659, 
 
 752, 980, 983 
 v. Maclachlan, 1874, 1 R, 
 
 920, 1200, 1204, 1205 
 v. Minto, 1860, 22 D. 
 
 1126, 587 
 v. Muir, 1910, 26 S.C.R. 
 
 158, 207 
 v . Robertson, 1853, 15 1). 
 
 292, 517, 518 
 
 v. Smith, 1852, 14 D. 583, 572 
 
 v. Patrick Thomson, Ltd. 
 
 (1910), 1911, S.C. 246, 493 
 v. Rollo, &c, 1871, 10 M. 
 
 104, 624 
 r. Warden, 1S45, 17 
 
 Jur. 271, 21 
 
 Hendry v. Brown, 1851, 13 D. 
 
 1046, 671 
 (Simpson's Executrix) v. 
 
 United Collieries, Ltd., 
 
 1910, S.C. 709, 876 
 Trustees v. West High- 
 land Railway Co., 1894, 10 
 S.C.R. 33, 1439 
 
 Henry v. Morrison, 1881, 8 R. 
 
 692, 1174 
 
 Hepburn v Tail, 1 874, 1 R. 875, 3 1 9 
 Herbison v. M'Kean, 1913, 50 
 
 S.L.R. 350, 1164 
 
 Heron v. Winfield, 1894, 22 R. 
 
 182, 191 
 
 Hertz v. Itzig, 1S65, 3 M. 813, 645 
 Higgins v. Atkinson, 1908, 24 
 
 S.C.R. 385, 384 
 
 Hill v. Fletcher, 1847, 10 D. 37, 518 
 Hillhouse v. Walker, 1891, 19 
 
 R. 47, 753 
 
 Hillhead Coins, v. Renwick, 
 
 1890, 17 R. 1042, 1405 
 
 Hilton v. Walker, 1867, 5 M. 
 
 969, 457 
 
 Note. — The Numbers refer to Paraqbapbs not to Payes.
 
 INDKX OF CASES CITED. 
 
 7'):; 
 
 Hoare v. Mackay, 1905, 13 
 
 S.L.T. 588, L042 
 
 Boey v. Boey, 1884, I I R. 578, 
 
 540 555 
 Bogg v. Campbell, 1864, 2 M. 
 
 1158, 
 Boll v. Bolt, L903, 25 S.C.R. 
 
 112, 195 
 
 Bood v. II I, 1871, 9 M. 
 
 441), 85 
 
 v. Trail, 1884, 12 R. 362, I 194 
 H..ok v. M'Calh 1905, 7 F. 
 
 528, 313 
 
 II ■ v. Bope's Trs., is!).",, 3 
 
 S.L.T. 15, 414 
 v. Derwent Mill Co., 1905, 
 
 7 F. 837, 187 
 
 H.nn /■. Sanderson, 1872, lo M. 
 
 295, 
 Home v. Eccles, 1725, Mor. 
 
 3704, 158 
 
 Horsburgh v. Morton, 1825,3 
 
 S. 596, 1033 
 
 Houston v. Aberdeen Town and 
 
 County Bank, 1849, 11 D. 
 
 1490, ' 659 
 
 Howard & Wyndham v. Rich- 
 mond's Trs., L890, 17 R. 
 
 990, 819 
 
 Bowden and Others r. Earl of 
 
 Haddington, 1851. 13 D. 
 
 522, 132 
 
 Hudson >'. limes and Grieve, 
 
 1908, 24 S.C.R, 190, 270, 707 
 Hughes v. Stewart, 1907, S.C. 
 
 791, 174, ITS 
 
 Hunter, 1908, 15 S.L.T. 716, 329 
 
 v. Clark, 1874, 1 1 1. 1154, 1155 
 
 v. Darngavil Coal Co., 
 
 1900, 3F. 10, 437 138 
 v. Fair weather, 1837, 15 
 
 S. G93, 175 
 
 v. Russell, 1901, 3 F. 596, 815 
 
 Hurst, Nelson & Co., Ltd., v. 
 
 Spencer Whatley, Ltd., 
 
 1912, S.C. 1041, ' 191-203 
 
 Hutchison's Trs. v. Butchisou, 
 
 1902, 40S.L.R. 200, 63 
 
 Hutton, 1872, H» M. 620, 923 
 
 Incorporated Law Society v. 
 
 Purves, 1897, 24 R. 394, 56 
 
 Inglis v. Gardner, 1843, 5 1). 
 
 1029, 549 
 v. M'lntyre, 1862, 24 D. 
 
 541, 34, 360, 4ii3. c.s:. 
 v. Robertson & Baxter, 
 
 Ltd., 1898, 25 R. (H.L.) 
 
 70, 193,643 
 v. Smith, 1859, 21 1). 
 
 822, 711 
 Trs. v Macpherson (1909), 
 
 1910, S.C. 16, 
 
 1019, 1022, 1026, litis 
 
 In gli \ Bow v. Smith, 
 
 1867, 5 M 
 I, m, v. Macdonald, 1899,2 I'. 
 
 6, 56 
 v , Macdonald, 1899, I F. 
 
 380, 
 ln\ ergordon Aucl ion < b. v. 
 
 Macmillan, 1908,24 S.C.R. 
 
 is;, 592 
 
 Ironside v. I ronsitlr, &c, 1911, 
 
 •27 S.C.R. 321, 672 
 
 Ir\ mi- v. I >euchar, 17'»7, Mor. 
 
 3703, 160 
 
 Irvin v. Fairfield Shipbuilding 
 
 Co., Ltd., 1898, I F. 595, 816 
 Ivison v. Edinburgh Silk Co., 
 
 is Hi, 9 I). 1039, 547 
 
 Jack v. Black, 1911, S.C, 691, 
 
 shi, 1035 
 ,.. x.u. Rly. Co., 1885, 12 
 
 R. 1029, 177 
 
 Jackson v. ( lochrane, 1873, 1 1 
 
 M. 175, 575 
 
 Jacobs i?. Scott, 1895, 2 S.L.T. 
 
 155, 197 
 
 James v. James, 1886, 13 R. 
 
 1153, 653, 1223 
 
 Jamieson v. Robertson, 18S8, 
 
 l(i R. 15, 
 Jan line /•. Carron Co., &c, 
 
 isii-j, 24 l». 143, 
 Jarvis r. Anderson, 1841, 3 D. 
 
 990, 
 Jenkins v. Robertson, 1869, 7 
 
 M. 739, 
 Joelv. Gill, 1859,21 D. 929and 
 
 22 I). 6, 158, 159, 161, 90 
 
 Johnston r. Dryden, 1890.18R. 
 
 191, 
 V. Dumfries Road Trs., 
 
 L867, 5 M. 1127, 
 . r. Jardine, Gibson Craig, 
 
 and Others, 1862, 34 Jur. 
 
 350, 
 r. Jendwine, 23 Jany., 
 
 1813, V.C., 
 V. Johnston, 1910, 26 
 
 S.C.R. 134, 634, 638, 1223 
 ,-. Lowden.&c, 1838, 1 I>. 
 
 540, 
 r. M'Ceorge, 1907, 21 
 
 S.C.R. 33, 
 
 V. Kiehanlson, 1905, 13 
 
 S.L.T. 537, 
 
 v Scott, 1829, 7 s. 234, 
 
 ,-. Spencer, 1908, SJ 
 
 1015, 
 r . Straohan, L861, 23 D. 
 
 758 158,215,217 
 
 r. Thoms,.n, 1877, 4 R. 
 
 m'.s, 986 
 
 ,.. Young, 1890, 18 K. 
 
 (J.C.)6, ^ 1035 
 
 ..72 
 249 
 552 
 319 
 
 228 
 1198 
 
 104 
 
 265 
 
 1076 
 
 11 II 
 676 
 
 ..s 
 
 XniE.—Tht Numbers refer to Paraqrapbs no' to i
 
 704 
 
 1NDKX OF CASKS CITKI). 
 
 Johnston's Trs. v. Glasgow Cor- 
 poration (Mill), 1912, S.C. 
 300, 7S0, 1323 
 
 Jones v. Samuel, 1862, 24 D. 
 
 319, 191,214 
 
 Junner v. N.B. Rly. Co., 1877, 
 
 4 K. 686, 182 
 
 Keiller v. Mackenzie, 1892, 
 
 19 R. 963, 92 
 
 Kelso District Committee v. 
 
 Fairbaim & Ferguson, 
 
 L891, 3 White 94, 10, 1 l-'.". 
 
 - School Board v. Hunter, 
 
 1874,2 R. 228, 1194 
 
 Keltie v. Wilson, 1828, 7S. 208, 11!) 
 Kennedy v. Clyde shipping 
 
 Co., 1908, S.C. 895, 603 
 r . Macdonald, 1876, 3 R. 
 
 813, 597 
 v. M'Kinnon, 1821, 1 S. 
 
 I lis, 655 
 
 Kermick v. Watson, 1871, 
 
 !) M. 984, 204, 2H7, 215 
 Kerr, 1906, 14 S.L.T. 412, 331 
 r. Malcolm, 1906, 14 
 
 S.L.T. 358, 817 
 
 Ketchen v. Grant, 1871, 9 M. 
 
 966, 634 
 
 Kilburn v. Wilson, 1903, 19 
 
 S.C.R. 249, 1032 
 
 Kilcoyne V. Wilson, 1907, S.C. 
 
 86, 419 
 
 Kilmarnock Magistrates v. 
 
 Reid, 1897, 24 R. 388 461 
 
 Killin v. Weir, 1905, 7 F. 52(5, 31 1 
 King v. Gavan, 1880, 17S.L.R. 
 
 583 -'HI 
 ,-. Patrick, 1845, 7 D. 
 
 536, 1225 
 
 Kint ore v. Kintore's Trs. , 1886, 
 
 13 R. 997, 1209 
 Earl of v. Pirie, 1906, 
 
 8F. (H.L.)10, 459,463 
 
 Kinnes v. Fleming, 1881, 8 R. 
 
 386, 734 
 
 Kippen v. Oppenheim, 1846, 
 
 s I ). 957, 1034 
 
 Kirkpatrick v. Max welton Local 
 
 Authority, (1911), 1912, 
 
 S.C. 288, 780, 1323 
 
 Kyd v. Waterston, 1880, 7 R. 
 
 884, 077 
 
 Kyle's Trs. v. White, 1827, 6 S. 
 
 40, 649 
 
 Laidlaw V. Provident Insur- 
 ance Co., 1890, 17 R. 544, ISO 
 
 Laing v. Nixon, I860, 4 M. 
 
 327, 526 
 
 Laing's Sewing Machine Co., 
 Ltd. v. Norrie &Sons, 1877, 
 5 R. 29, 585 
 
 Lamb v. Grant, ls74, 11 
 S.L.R. 672, 
 v. Thomson, 1901, 4 F. 
 
 1033 
 
 113 
 
 692 
 
 - v. Wood, 1904, 6 F. 1091, 
 
 Lainonl v. Lorimer, 1*07, M. 
 
 si. 699 
 
 Lanark County Council v. 
 Motherwell Magisl rates, 
 1912, S.C. 1251, 1306 
 
 Lanarkshire Road Trs. v. Glas- 
 gow Magistrates, l s *7, 14 
 R. 890, ' 1443 
 
 Landale v. Wilson, 1900 2 F. 
 
 1047, 67.") 
 
 Lang v. Downie, 1872, 9S.L.R. 
 
 308, 668 
 
 v. daily, 1870, 8 M. 7o3, 923 
 
 Laurie r. Banknock Coal Co., 
 
 1911, S.C. 817, 7.">1 
 Law v. M'Dougall's Trs., 1864, 
 
 6 D. 68, ' 653 
 
 Lawrence v. C ray, 1908, 25 
 
 S.C.R. 19, 612 
 
 Lawson v. Donaldson, 189:1, 10 
 
 S.C.R. 110, 534 
 
 Lawson's Trs. /'. British Linen 
 
 Bank, 1874, 1 R. 106:., 270 
 
 Learmont v. Shearer, 1866, 38 
 
 Jur. 274, 650 
 
 Le Conte v. Douglas, 18S0, 8 
 Leer. Pollock's Trs.. 1906, 8 F. 
 
 857, 598 
 
 R. 17"), 33, 684, 1130 
 
 Leggat Bros. /•. (-ray (1911), 
 
 1912, S.C. 230, ' 96 
 
 r. Gray, 1908, S.C. 67, 187, 418 
 
 Leith Magistrates r. Gibb, 
 
 1SS2, Pi S.L.R: 39!), 801 
 
 v. Lennon, 1881, 18 S.L.R. 
 
 313, 783 
 
 Leonard v. Lindsay & Benzie, 
 
 1SS6, 13 R. 958, 459 
 
 Lindsay v. Chapman, 1826, 4 S. 
 
 496, 422 
 *;. Hendrie, 1879, 6 R. 
 
 1246, 7 R. !)1 I, 953 
 r. Kerr, 1891, 28 S.L.R. 
 
 267, 817 
 
 v. Magistrates of Leith, 
 
 1897, 24 R. 867, 1375 
 
 v. Lindsay, 1S-J7.5S. 310, 26S 
 r. Kail of Wemyss, 1 872, 
 
 10 M. 70S, 692, 1042 
 
 Linn v. Casadinos, 1881, 8 R. 
 
 849. 169 
 
 Linton v. City of Glasgow 
 
 Friendly Society, 1895, 23 
 
 R. 51, 766 
 
 Little v. P. & W. M'Lellan, 
 
 Ltd., 1900, 2F. 387, 903 
 
 Little v. Stevenson, 1896, 23 
 
 R. (ILL.) 12, 601 
 
 Livingstone '•. Dinwoodie, 1860, 
 
 22 D. 1333, 506, 509 
 
 NOTE. — The Numbers refer to Paragraphs not to Pages.
 
 I.\|)i;\ OF CAS i <l 
 
 Li\ ingstone o. Johnstone, 1830, 
 
 7".". 
 
 3 3. 594, 156 
 
 Lochgelly rron ( !o. v. Sinclair, 
 
 L907, S.I !. 142, 805, 905 
 Coal ( !o. v. Sinclair, L909, 
 
 I S.L.T. 367, 899 
 
 Lochhead v. Graham, 1883, 11 
 
 i:. 201, 882, 689 
 
 Loohrie v. M'Gregor (1910), 
 
 1911, S.C. 21, 913 
 
 uv Miller, L91 1.27S.C.R. 
 
 25, 371 
 ,.. Thomson, L859, 31 Jur. 
 
 173, 216 
 r . Wilkie, 1855, 17 D. 
 
 485, 672 
 
 Loudon v. young, 1856, is 1). 
 
 856, 465 
 
 Longmuir v. Longmuir, 1850, 
 
 12 l>. 926, 221 
 
 I .. i u orl li v. Yelverton, 1865, 
 
 3 M. 645; 1867, 5 M. 
 
 (H.L.) 144, 570, 573 
 ,.. N elverton, 1868, 7 M. 
 
 7". 201 
 
 Lornie v. Perth Highland 1 >is 
 
 tricl Cum.. 1909.25S.C.R. 
 
 124, 818 
 
 Lothian, Marquis of, v. Smith, 
 
 1884, 12 R. 580, 971 
 
 Love r. Luxe, 1907, S.C. 728, 
 
 208, 210 
 Low v. Low, 190."). 12 S.L.T. 
 
 SI 7, 267 
 v. B'arquharson, 1831, 9 S. 
 
 411, -247 
 
 Lucas v. Campbell & Scott, 
 
 1894, 21 R. 1096, 061 
 
 Luke v. Wallace, 1896, 23 R. 
 
 634, 1212 
 
 Lyle v. Balfour, 1830, 9 S. 22, L30 
 Lynch v. Stewart, 1870, 9 M. 
 
 860, 245 
 
 Lyons r. Anderson, 1880, 8 R. 
 
 24, 1212 
 
 M'Arthur v. Boucher, 18S7, 15 
 
 R. 117, 753 
 
 M •. Mister v. M'Alister, 1762, 
 
 Mor. 4036, 1225 
 ,.. Brown, 1870, 8 S.L.R. 
 
 502, 509 
 
 M'Arthur v. M -Queen, 1901, 3 
 
 K. 1010, 550 
 
 M'Aulay v. M'Kenzie, 1S30, 9 
 
 s. is, 440 
 
 MT.ain v. Davidson, 1860, 22 
 
 1). 738, 550 
 
 M'Beth v. Troy, 1S73, 11 M. 
 
 404, 29 
 
 M'Bey v. Knight. 1S79, 7 R. 
 
 208 
 M'Caffer v. Allan, 1896, 33 
 
 S.L.R. 601, 601 
 
 \l Call v. Sharpe, 1862, 24 D. 
 
 393, 67, I 
 
 M'Carthy 1897, 24 
 
 R. 610, 607 
 
 MM allum v. Barrii . 1878, 5 R. 
 
 683, 1405 
 
 M'Connell & Reid v. Smith, 
 
 1911, - I 171 
 
 M'Cowan v. Wright, 1853, 
 
 Jur. 306, 521, 
 
 M- k M'Crae, 1879, 15 
 
 3.C.R. 255, 62 
 
 Macra Edinburgh Tramway 
 
 Company, 1885, 13 R. 265, 157 
 M'Crae v. Hyndman, 1836, 9 
 
 Jur. 28, ' 223 
 
 M'Creadiee v. Doug] i . 1882, 10 
 
 R. ins, 
 M'Cuaig v. M'Cuaig, L909, S.C. 
 
 355, 
 M'Cullochv. Sannay, &c, 1829, 
 
 8 S. 122, 584 
 „. Jack's Trs., L910, S.C. 
 
 34, 931 
 
 M •] >ermo1 1 v. Ramsaj . 1 876, l 
 
 R. 217, 135, 273, 300, 303, 90S 
 M'Donald v. II. R. Co., 1892, 
 
 20 R. 217, 531 
 ,-. M'Eachan, 1880, 7 R. 
 
 57L 727 
 v. M'Donald, In7-">. 2 1 1. 
 
 705, 85,91, 11S1 
 r . M'Donalds, 1S81, 8 R. 
 
 357, 552 
 v. M'Donald, 1881, 8 R. 
 
 985, 1186 
 r. M'Donald, I'.MIS, 24 
 
 S.C.R.271, 1182 
 ,-. M'Kessack, 188S, 16 R 
 
 168, 117'i 
 v. M'Kenzie, 1891, Is R. 
 
 502, '■'" 
 /•. N. Y. Insurance Co., 
 
 1903, 11 S.L.T. 120, 
 v. Simpson, 1SS2, 9 R. 
 
 696, 228 
 
 v . Wingate, 1825, 3 S. 194, 645 
 
 M'Duff v. M'Duff, 1893, 9 
 
 S.C.R. 243, 
 M'Douall r. Caird, 1870, 8 M. 
 
 1012, 510 
 
 M'Dowall v. Campbell, 1838, 
 
 it; s. 629, 12' > 
 
 M'Ewan v. Baird, 1910, S.C. 
 
 436, 
 M'Ewan's Trs. v. Robertson, 
 
 1852, 15 D. 265, 201 
 
 Macfarlane v. Watt, 1828, 6 S. 
 
 1095, 571 
 
 Macfarlane v. Macfarlane, isi7. 
 
 9D.o"". 1217 
 
 M'Fadvcn v. United Alkali 
 
 lsi»7, i s.L.T. 321. 12:; 
 
 M'George ». M'George's I 
 1887, l i R. 841, 
 
 Note. — The Nwmbbrs refer to Paragraphs not to P 
 
 15
 
 706 
 
 INDEX OF CASES CITED. 
 
 M'Gibbon <■. Thomson, 1^,7. I 
 
 R. ins;., 367 
 
 M'Gill v. M'Ara, 1832, lo S. 
 
 552, T."> I 
 
 M'Gill v Spencer, 1908, 24 
 
 S.C.R. L02, 860 
 
 M'Gildowney v. Hart, 1911,27 
 
 R. 37, 270 
 
 M'Gillvray v. M'Intosh, 1891, 
 
 1!' R. 103, 805 
 Trs. v. Dallas. 1905, 7 F. 
 
 7:::;. 676 
 Trs. /-. Boyd, 1906, L3 
 
 S.L.T. 878, ' 672 
 
 M'Gowan v. Cramb, 1898, 25 
 
 R. 634, 817 
 
 M'Gregor— 1848, 11 D. 285, 351 
 
 M'Grorty v. Shotts Iron Co., 
 
 1910, 26 S.C.R. L57, 792 
 
 M'Guire v. Smith, 1889, -27 
 
 S.L.R. I I. 418 
 
 • I 'nion Cold Storage Co., 
 
 190!), S.C. 384, 724 
 
 M'Intyrev. Cal. Rly. Co., 1909, 
 
 25 S.C.R. 329, 637 
 v. Nat. Dank, 1910, S.C. 
 
 150, 513 
 v. Smith, 1912, 50 S.L.R. 
 
 261, 457 
 
 M'Intosh r. Potts, 1905, 7 F. 
 
 7(i:., 1042 
 
 M'Kav v. Dick & Stevenson, 
 
 1881, 8R. (H.L.)37, 601 
 v. M'Kenzie, 1894, 21 R. 
 
 894, 601 
 v. Resolis Par. Council, 
 
 1899, 1 F. 521, 1185 
 v. Muun, 1909, 25 S.C.R. 
 
 369, 550 
 
 M'Kaskill v. M'Leod, 1897, 24 
 
 R. 999, 1157 
 
 M'Kechnie v. Macfarlanc, 1821, 
 
 in S. 120, 247 
 
 M'Kellar v. M'Kellar, 1898,25 
 
 R. 883, 791 
 
 M'Kerchar v. M'Quarrie, 1887, 
 
 14 R. 1038, 813 
 
 M'Kendrick v. Robertson, 1870 
 
 9 M. 283, 444 
 v. Nat. Un. Dock Lab., 
 
 1911, S.C. 83, 117 
 
 M'Kenzie v. Balerno Paper Co., 
 
 L883, 10 R. 1147, 1170, 1180 
 v. Blakley, 1879, 7 R. 
 
 51, 813 
 v. Campbell, L829, 7 S. 
 
 899, IK' 
 
 ,-. Coulthart, L889, 10 R. 
 
 1 127, 1204 
 
 „. Ferrier, 1900, 7 S.L.T. 
 
 316, 306, 034 
 y. Girvan, is in. 3 D. 318, 158 
 v. Gilanders, 1853, 26Jur. 
 74, L022 
 v. M'Lean, 1830, 8 S. 300, 1177 
 
 313 
 
 238 
 
 113 
 
 678 
 
 M'Kenzie v. M'AIlister, L909, 
 
 S.C. 367, 
 Trs. v. Mackenzie, L908, 
 
 S.C. 995, 
 -v. N.B.R. Co., 1879, 7 K, 
 
 128, 
 Trs. v. Sutherland, 1895, 
 
 22 R. 233. 
 M'Kidd r. Manson, L882, 9 R. 
 
 790, 247, 595 
 
 M'Kimmie's Trs. r. Armour, 
 
 1899, •_' V. 156, 714 
 
 M'Kinnon v. s.s. America, 
 
 1904, 12 S.L.T. 411, 552 
 
 — ,.. M'Kinnon, L905, 7 K. 
 
 589, 312, 139 
 
 M'Kinlay v. M'Kinlay, L849, 
 
 111). 1022, 
 Mackie v. Clark & Cruick- 
 shanks, 1896, 4 S.L.T. 84, 
 
 ,,. Strachan, 1896, 23 R. 
 
 1030, 
 M'Lachlan v. Bruce, &c, 1912, 
 49 S.L.R. 433, 
 
 v. Flowerdew, 1851, 13 D. 
 
 1345, 
 
 v . Douglas, 1803, 4 Irv. 
 
 273, 
 
 v. Dumbarton Steamboat 
 
 Co., 1903, 19 S.C.R. 270, 
 
 (-las. Tram. Co., 1897, 24 
 
 R. 992, 
 
 r . Reilly, 1892, 20 R. 
 
 41, 
 M'Laren v. M'Dougal, 1881, 8 
 R. 626, 
 
 v . Shore, 1883, 10 R. 1067, 
 
 v . Preston, 1893, 1 S.L.T. 
 
 75, 
 M'Laren's Trs. v. National 
 
 Bank, L897, 24 R. 920, 
 M'Lean r. Hassard, 1903, 10 
 
 S.L.T. 107, 
 M'Leay v. Campbell, 1870, 3 R. 
 999, 
 
 v . Rose, 1820, 4 S. 480, 
 
 M'Lellan & Co. v. Mitchell 
 (Liquidator), 1909, 2 
 S.L.T. 408, 
 M'Leod v. Davidson, 1887, 14 
 R. 298, 
 
 ,.. Dobson, 1900, 10 S.C.R. 
 
 33, 104, 120, 204 
 
 v. Tancrcd, Arrol, & Co., 
 
 1890, 17 R. 514, 447 
 
 M'Leod's Trs. v. Leslie, 1868, 
 
 6 M. 445, 514 
 
 M 'Lin toe k v. Printzen and Van 
 Glabbeck, 1902, 4 F. 948, . 
 
 736, 1180 
 M'Loskie V. Clasgow Marine 
 Insurance Co., 1843, 5 D. 
 1013, 539 
 
 M'Master v. Caledonian Rail- 
 way Co., 1885, 13 R. 252, 848 
 
 269 
 
 514 
 95 
 
 1200 
 529 
 496 
 177 
 810 
 
 1035 
 
 65 
 
 574 
 
 418 
 
 98 
 
 438 
 
 574 
 420 
 
 904 
 350 
 
 Note.— The Numbers refer to Paragraphs not to Pages.
 
 [NDEX OF CASES CITED 
 
 707 
 
 M'Math r. Baird & Co., 1908, 
 
 25S.C.R. 113, sx7 
 
 M'Millan v. Singer Co., L912, 
 
 50 s.l,. i:. 220, 858 
 
 M'Nab i>. Clark, 1889, 16 R. 
 
 610, 968 
 
 — - v. Nelsons, 1909, S.< '. 
 
 I 102, 405, inc., 610, 612 
 v. Lockh hi, 1843, 5 D. 
 
 1014, 579 
 
 Macnaughton v. Thomson, 
 
 1907, 24 S.C.R. 80, 7ss 
 M'Neil v. M'Neil, 1891, is K. 
 
 (J.C.)38, 1134 
 
 M'Niven v. M'Kinnon, 1834, 
 
 12 s. 453, 169 
 
 M 'Quade v. Summerlee Co., 
 
 L908, 24 S.C.R. 107, 860 
 
 M'Quillian w. Smith, L892, 
 
 10 R. 375, 229 
 
 Macready v. Douglass, 1882, 
 
 in R. 108, 66 
 
 M' Ritchie v. Murray & Young, 
 
 1827, 5 S. 226, 463 
 
 M'Sorley v. Paisley Magis- 
 trates, 1912, 10 S.L.T. sii, 418 
 M • ravish v. < !ameron, 1899, 
 
 L5 S.C.R. 292, lo 
 
 M'Vey v. Dixon, Ltd., L910, 
 
 S.C. 544, 872, 873,875 
 
 M'Vicar v. Robertson, 1910, 
 
 S.C. 396, 849, 903 
 
 M'Whirter v. Lynch, 1908, 
 
 S.C. 12, 550 
 
 Mabon v. Cairns, 1st."), :> R. 17, .">6.'? 
 Magistrates of Portobello v. 
 
 Magistrates of Edinburgh, 
 
 1882, 10 R. 130, 759 
 ot Cumnock '■. Murdoch, 
 
 1910, S.C. 748, 1 mi 
 of Edinburgh v. Warren- 
 
 der, 1862, I M. 887, 556 
 of Helensburgh v. Brock, 
 
 L905, 13 S.L.T., 98, 141 
 of Edinburgh v. Warren- 
 
 der, 1st,:;, 1 M. 887, 130 
 
 Mair V. United Collieries Ltd., 
 
 1908, s.c. 768, 641 
 Maitland v. Cockerell, 1827, 
 
 lis. L09, 3-21 
 
 Manchester and < !oun) \ Bank 
 
 >: Moore, (1908) 1909, S.C. 
 
 246, 723 
 
 Manderstone v. Manderstone, 
 
 1 Guth Sel. Ca. 34, 1183 
 
 Mantach v. Wilson, &c, 1887, 
 
 14 R. 643, ti"' s 
 
 Marjoribanks v. Borthwick, 
 
 1857, 19 D. 17 1, ."77 
 
 Marks v. Frogley, L.R. 1, 2 B. 
 
 899, 1 is 
 
 Marr v. Lindsay, 1881, 8 R. 
 
 784, 960 
 
 Marshall v. Cal. Rly.Co., 1900, 
 
 •J V. 704, 177 
 
 M ,. hall v. Connor, 1848, 21 
 
 .1 hi-. 63, 268 
 
 Mar hall v. Dobson, 1844, 7 I >. 
 
 232, 135 
 v. Roberts 1905, 21 
 
 S.l LR. 243, 645 
 v. Shearer, 1903, II S.L.T. 
 
 71, 566 
 
 Martin v. I Ihderwood, 1 827, 5 
 
 S. 730, 268 
 
 Mascoe Bed Co., Ltd. v. Matt in. 
 
 1912, s.c 802 
 
 Mathers v. Lawrie, 1849, 12 l>. 
 
 133, 522 
 
 Mathit on v, Thomson, 1853, 
 
 16 I). 19, 318 
 Matthews v. Baird, 1910, S.C. 
 
 689, 874 
 
 Matheson v. Scottish Trade 
 
 Prott ction Society, I B 
 
 S.L.T. 213, 111 
 
 Maulew. Page, 1909, 17 S.L.R. 
 
 110, 199 
 
 Mavor v. Aberdeen Ed. Trust, 
 
 1902, in S.L.T. L56, 245 
 
 Maxwell v. ft. & S.-W. Rly. 
 
 Co., 1866, I M. H7, mi 
 
 v. Bell, I stit. 36Jur. 706, 529 
 
 — v. Hot-wood's Trs., 1902, 
 
 4 F. 489, 208 
 
 Maxwell's Trs. v. Kirkintilloch 
 
 Parish Council, 1883, 11 R. 
 
 1, 800 
 
 Maxton v. Hone, 1886, 13 R. 
 
 912, 736 
 
 Meikle v. Tait's Factoi . 1890, 
 
 17 R. 1182, 672 
 
 ,.. Wilson, 1884, 11 R. 867, 982 
 
 Melrose Parish Council v. 
 
 Hawick Parish Counoil, 
 
 L912, 19 S.L.R. 749, 714 
 
 Melrose v. Spalding, L868, 6 M. 
 
 952, 601 
 
 Menziesv. Templeton, 1895, 1-' 
 
 S.C.R. 323, 130 
 
 Meron v. Qraland, 1896, 3 
 
 S.L.T. 286, 655 
 
 Metzenbergv. H. R. Co., 1869, 
 
 7 M. 919, 636 
 Millar. 1877, •"' R. 144, 955 
 Miller Pet., 1853, 16 D. 109, 334 
 ,.. Wilson, 174'.», Mor. 
 
 15, 1 is, 119 
 
 >-. Bain, L879, 6 R. 1215, 
 
 1204, 1205 
 v. Duncan, 1858, 20 1>. 
 
 803, 919 
 & Lang o. Poole, 1907, 15 
 
 s.l,. I. 76, lis 
 
 ,.. Pateraon, 1831, 9 S. 792, 1034 
 
 r . Dre, 1838, 16 S. 1204, 666 
 
 Milne v. Archibald, ism;, 1 
 
 Guth. Sel. Ca. 107, 1249 
 
 v. Birrell, 1902, I I'. 879, 700 
 
 v. Milne. 1885, 13 R. 304, 1225 
 
 NoTB.~Tht Numbers refer to Paragraphs not to .
 
 708 
 
 INDEX OF CASES CITED. 
 
 Mint ons v. Eawley, 1882, 20 
 
 S.L.R. 126, ' 7s:; 
 
 Mintv v. Ellis Trs. 1887, 15 H. 
 
 262, 1087 
 
 Mitchell & Baxter v. ( !heyne, 
 
 1891, 19 R. 324, 69 
 v. Edin. Dean <>f Guild, 
 
 1885, 12 R. si I. I 102 
 /•. Moultry, 1882, In K. 
 
 378, 579 
 
 ,.. \i,,,i, 1890, 17 R 795, 815 
 
 ,-. Stewart, 1907, N S.L.T. 
 
 us;,. 221 
 
 Moncrieff v. Moncrieff, 1904, 
 
 ii F. 1021, 138 
 r. Perth Comrs., 1886, 13 
 
 R. 927, 60:'. 
 ,.. Sievwright, 1895, 33 
 
 S.L.R. 456, 446 
 
 Moncur v. Macdonald, 1887, 14 
 
 R. 305, 919 
 
 MuntiioinciH' /•. Mai;s. of Had- 
 dington, L906, 14 S.L.T. 
 
 is:;. 790 
 
 Montgomery t>. Loughran, 1891, 
 
 is II. (J.O.), 25, 1134 
 
 Moore/'. Paterson, 1881, 9 R. 
 
 337, 1175 
 
 Moreton v. Macdonald, 1849, 
 
 11 I). 1417, 526 
 
 Morrison v. Cuthbert, 1835, 13 
 
 S. 772, 1176 
 v. Hunter & Ross, 1822, 
 
 2 S. 62, 584 
 
 ,.. Smith, 1876, 4 R. 9, 371 
 
 r . Vallance's Exr., 1907, 
 
 S.C. 999, 162, 16S, 348 
 & Mason v. Clarkson, 1896, 
 
 4 S.L.T. 157, 552 
 
 Motherwell Comrs. v. Lanark 
 
 Comrs. , 1 90 1 , 4 F. 151 , 37 1 . 61 17 
 v. Manwell, 1903, 5 F. 
 
 619, 129 
 
 Mouat i;. Lee, 1891, 18 R. 876, 209 
 Mowat r. Martine, 1856,- 2 Irv. 
 
 435, 1125 
 
 Mowbray v. Bruce, 1S99, 15 
 
 S.C.R. 283, 164 
 Trs. v. Mowbray, 1883, 
 
 10 R. 460, 138 
 Muir, 1876, 4 R. 74, 1077 
 v. Collett, 1SG2, 24 I). 
 
 1119, 250 
 r. Edin. Tram. (1908), 
 
 1909, S.C. 244, 517 
 V. Tay Marine Insurance 
 
 Co., 1843, 5 D. 579, 586 
 
 r. Muir, 1910, 1 S.L.T. 
 
 lit. 306 
 
 - v. Nisbet, 1881, 19 S.L.R. 
 
 59, 327 
 
 Weir, 1910, 27 S.C.R. 151, 348 
 
 M airhead v. Gilmour, 1909, 46 
 
 S.L.R. 425, 211 
 1909, 1 S.L.T. 235, 110 
 
 Muirhead v. Muirhead, 1846, 8 
 I). 786, 1217 
 
 Munio /•. Macdonald's Exrs., 
 
 1866, I M. 687, 465 
 
 Murrav v. A. lams, L909, 25 
 
 S.C.R., 152. 1134 
 
 Dickson, I sec, I M. 797. 98 
 
 v. Rennie, 1897, 24 R. 
 1025, 796 
 
 Murphy v. Clyde Trs., 1902, 4 
 
 l<\ 653, ' 506 
 
 Muslirt /-. Duke of Buccleuch, 
 
 is:,]. 13 1). 715, 459 
 
 Mylne v. M'Callum, 1878, 5 R. 
 
 546, 953 
 
 Nat. Bank v. City Restaurant 
 
 Co., 1901, 4 F. 17, 666, 673 
 /•. Macqueen, 1881, 18 
 
 s. LR. us:;. 964 
 
 Nat. Exchange Co., 18.17, 19 
 
 J). 689, 522 
 
 ,-. Drew, 1861,23 D. 1278, 121 
 
 N.B.R. Co. v. Brown, 1857, 19 
 
 1). 840, 439 
 
 v. Carter, 1870, S M. 998, 440 
 
 v. Grain Storage Co., 1897, 
 
 24 R. 687, 4(i5 
 
 r . White, 1881, 9 R. 97, 
 
 072, 073 
 Neil r. Neil's Trs., 1873, 1 R. 
 
 320, 955 
 
 Neilson Sproul /-. M'Intyre, 
 
 1910, 26 S.C.R. 259, 171 
 
 Nelmes v. Gillies, 1883, 10 B. 
 
 890, 1212 
 
 Nelson v. Wilson, 1890, 17 R. 
 
 008, 312 
 v. Lanark C.C. 1891, 7 
 
 S.C.R. 3, 1108 
 
 Netherwood v. Scott, 1907, 24 
 
 S.C.B. 39, 1134 
 
 New Mining Syndicate v. 
 
 Chalmers, 1909, S.C. 1390, 
 
 720, 788 
 Nicol r. Edmond, 1851, 13 D. 
 
 614, 943 
 v . Johnston, 1888, 26 
 
 S.L.R. 61, 372,612 
 v. Mercer, 1902, 10 S.L.T. 
 
 142, 1032 
 
 Nisbet v. Mitchell Innes, 1880, 
 
 7 R. 575, 459 
 v. Taylor's Exrs., 1840, 3 
 
 U. 332, 570 
 
 Nivison v. Howat, 1883, 11 R. 
 
 182, 95 
 
 Nixon v. Caldwell, 1876, 3 R. 
 
 (J.C.)31, 111<> 
 
 Noble, 1S43, 5 1). 723, 521 
 
 North v. Stewart, 1890, 17 R. 
 
 (H.L.)GO, 187,198 
 
 North of Scotland Bank v. 
 
 Harrison, 1891, 18 R. 460, 47 
 v. Ireland, 1880, 8 R. 117, 947 
 
 Note. — The Numbers refer to PARAGRAPHS not to Pages.
 
 INDIA OF CASES CITED. 
 
 
 Nor! h-Eastei n Railwaj < !o. <: 
 
 Na p, 1859, 21 D. i 399 
 
 \ or! Cumberland ( Duke of) v. 
 
 Harri . 1832, l" S 366, 1201 
 
 Oliphaut v. Douglas, 1663 Mor. 
 
 
 L5002, 
 
 ::iT 
 
 Oliver v. Simpson, 1898, 1 1'. 
 
 
 1 12, 
 
 1134 
 
 ,.. Wilkie, 1901, I 1'. 362, 
 
 
 (> \l iny v. Smith, 1851, 13 1 >. 
 
 
 "ITs, 
 
 I in 
 
 Orr v. Smith, 1891, 28 S.L.R. 
 
 
 539, 
 
 Sill 
 
 ii Ld v, 1 Iraeme, 1 851 . 13 1 >. 
 
 
 1229, 
 
 1032 
 
 Overburj v. Peak, 1863, 1 M. 
 
 
 L058, 
 
 268 
 
 i v. Osborne* Baig, 1910, 
 
 S.C. 341, 156, 256 
 
 Paisley Par. ( '. v. Row i < 'la-. 
 
 P.I .. 1908, S.C. 731, 556, 71! 
 Park v. Ro ison, 1871, Hi M. 10, 932 
 Partridge v. Baillie, 1873, 1 R. 
 
 253, 926 
 
 mi /•. Beardmore, 1910, 
 
 S.C. 507, 897 
 
 v. I low ie's Ex., 1904, 7 F. 
 
 (J.C.)68, 575 
 
 ,.. Kidd, 1896, •_ > :: R. 737, 7:>t 
 
 ,•. Paterson, 1899, 2 1'. 81, 4ii."> 
 
 V. Wallace (1908), 1909, 
 
 S.C. 20, ."-si, 585, 592, 593 
 Paul v. Robb, 1855, 17 D. 157, 940 
 v. Macrae, Ism;. :; S.C.R. 
 
 338, 375 
 
 Pauline v. Pauline, 1905, 8 F. 
 
 :.l 1, ii7:; 
 
 Paxton v. Brown, 1908, S.C. 
 
 Hi.;, :;il 
 ,.. Kil. Football Club, 
 
 1885, I S.C.R. 84, 
 1 '. e i\ Irons, 1 869, 7 M. 571, 461 
 I hi r. Anderson, 1 897, 5 
 
 S.L.T. 230, 524 
 
 Pease v. Smith, Isjj, l s. 120, --'tis 
 Peti rsen v, M 'Lean, 1868, 6 M. 
 
 218, 655 
 
 Philip v. Dunoon Comrs., 1885, 
 
 12 R. 159, I 103 
 v . Gordon, 1848, 11 D. 
 
 175, 69,600 
 ,.. Wilson, 1911, 188.L.R. 
 
 947, 62 
 
 Phosphate Sew ige < !o. v. Molli- 
 
 1874, 1 R. 840, '."'7 
 
 Picken v. Cal. Rly. Co., 1901, 
 
 i 1'. 39, 817 
 
 Pickford v. Johnston, 1890, 6 
 
 S.C.R. 252, 530 
 
 Pirie v. Cal. Rly. Co., 1890, 17 
 
 R. 11. ".7, 531 
 
 ,- Warden, 1867,5 M.497, 216 
 
 Pitman v. Bunietl i ■ . I 
 
 9 R. III. 110 
 
 Pitsligo Herito 6 R. 
 
 1063, l"l 
 Pollock v. King, 1844, 7 D. 172, 
 
 /•. M Edin- 
 burgh, 23 l>. 555, _'l D 
 371, 
 
 ,-. Scott, 1844, 6 1». 1297, 647 
 
 Pollok v. Old Park I 
 
 1907, 15 S.L.T. 161, 191, 118 
 
 ,.. Workman, 1900, 2 I . 
 
 354, 311 
 
 Pollokshaw s ( !oms. v. M 'Lean, 
 
 1899, -J !•'. 96, 208 
 
 bello Pier Co. v. ''lift, 
 1877, I R 805 
 
 lolomew, 1847, 
 20Jur. is. 653 
 
 v. Hamilt 1870, 8 M. 
 
 1064, 318 
 Price v. ( Canadian Pacific Rly. 
 
 Co., 1911, S.C. 631, 1119 
 
 Pritchard v. Bangor, 1887, 13 
 
 Ap. Ca. 241, 1379 
 
 I'm ;ea v. Brock, L867, 5 M. 
 
 1003, 117! 
 v. Gilchrist, l!i"~>, 13 
 
 S.L.T. 460, 517 
 
 Quin v. Brown & Co., Ltd., 
 
 1906, 8 I-'. 855, 903 
 
 v. Gardner, L888, 15 It. 
 
 776, 460 
 
 Rae v. 1'ri i :. 1899, I F. 1017, 897 
 v. Bamilton, 1904, 6 F. 
 
 • I.c i 12, 139 
 
 mi V. Lain.', 1881, 9 R. 
 
 ■-'■•7. 1087 
 
 Ralston v. Cal. Rly. Co., 1878, 
 
 :» R. 671, 
 Railton v. Mathews, 1844, 6 D. 
 
 1348, 267 
 
 Ramsaj '.- Jud. Factor p. B. L. 
 
 Bank, 1911, S.C. 832, 674, 675 
 Rankin v. Nolan, 1842, 1 1 ». 
 
 832, 267 
 
 ine v. Alloa Coal Co., 
 
 L903, •". F. 1164, 
 Rannie . i?, L891, Is R. 903, 121 t 
 Rattray, 1887, 3 S.C.R. 342, 979 
 Reid, 1830, 8 S. 960, 1076 
 ,.. Henderson, 1841, 3 D. 
 
 1102, 456 
 \ m-i ,il I;. Douglas, 
 
 lsi i. F.i . 249 
 
 . N. [sles l>ist. ( lorn, of 
 
 Orkney, 1912, S I . 627, 
 ,-. Strathie, 1887, I I R. 
 
 847, 919 
 
 Renfrew v. Mags, of • 
 
 1861, 23 1». 101 
 
 ,\ . ^ Th -V tml rs r« fer to Paraqraj
 
 710 
 
 1M>K\ OF CASKS CITED. 
 
 Rennie v. N.B.R. Co., 1910, 
 
 S.I ,R. 100, 1413 
 
 Rhind v. Com. Hank, 1857, 
 
 l!i I). 519, 
 
 522 
 
 Richardson v. B'leming, 1 867, 5 
 
 
 M. 586, 475 
 
 55G 
 
 v. Gavin's Trs., 1851, 14 1). 
 
 
 279, 
 
 4(H 
 
 ,.. Wilson, 1905, L2S.L.T. 
 
 
 77.-.. 
 
 678 
 
 Riddel! v. Lanark Rly. Co., 
 
 
 1904, 6 F. 132, 
 
 si 1 
 
 Riddle v. Riddle, 1904, 12 
 
 
 S.L.T. 361, 
 
 803 
 
 Ringer v. Churchill, 1840,2D. 
 
 
 307, 163 
 
 220 
 
 Ritchie v. Frazer, 1852, 15 1>. 
 
 
 205, 
 
 161 
 
 v. M'Lachlau, 1870, 8 M. 
 
 
 815, 
 
 650 
 
 v. M'Intosh, 1881, 8 R. 
 
 
 717. 
 
 226 
 
 D . Wilson, 1828, 6 S. 552, 
 
 175 
 
 Robb&Crosbiev. Forbes, 1911, 
 
 
 27 S.C.R. 162, 
 
 595 
 
 Robb's Trs. <■. Button, 1866, 4 
 
 
 M. 546, 
 
 267 
 
 Trs. v. Robb, 1S80, 7 R. 
 
 
 hum. 
 
 678 
 
 Roberts v. Crawford, 1884,22 
 
 
 S.L.R. 135, 
 
 341 
 
 v. Fettes, 1902, is S.C.R. 
 
 
 290, 
 
 95 
 
 v. Provincial Homes 
 
 
 Investment Co. , Ltd., 1906, 
 
 
 14 S.L.R. 76, 
 
 L80 
 
 Robertson, Ism i, 7 R. 1092, 
 
 1157 
 
 Pet., 1893,20 R. 47, 
 
 712 
 
 17. Davidson, 1833, 11 S. 
 
 
 659, 
 
 4."> 7 
 
 v , ExUv, is:;::. 11 s. 320, 
 
 268 
 
 v. Part of Dudley, 1875, 
 
 
 2 R. 935, 
 
 515 
 
 v. Duke of Athole, 1869, 
 
 
 s M. 305, 
 
 154 
 
 „. Duke of Athole, 1905, 
 
 
 18 S.L.R. 601, 
 
 318 
 
 y. Gardner, 1889, 16 R. 
 
 
 705, 
 
 1210 
 
 „. ]>a,k & Co., 1896, 24 
 
 
 R. 30, 
 
 Tim 
 
 ,•. Roberl -on's Trs . 1885, 
 
 
 13 R. 424, 
 
 952 
 
 r . Robertson, L897, 1 
 
 
 S.L.T. 358, 
 
 525 
 
 Robertson 17. Ross, 1873, 11 M. 
 
 
 910, 
 
 67, 69 
 
 y. Midlothian CO., 1898, 
 
 
 25 11. 569, 
 
 1155 
 
 v. Mitchell, 1871, 9 M. 
 
 
 741, 924,935 
 
 „. M'Caw, 1911, S.C. 
 
 
 650, 
 
 788 
 
 v. M'Culloch, L836, 11 S. 
 
 
 950, 
 
 335 
 
 Robertson t?. Murphy, 1867, 6 
 
 M. 1 I I. 44G, 449 
 
 ,.. Neely, 1895, 12 S.C.R. 
 
 182, 217 
 
 r Stewart, 1874, 1 R. 532, 
 
 540, 555, 587 
 Robertson-Durham (as Liq.) v. 
 Stern & Watt, L909, 17 
 S.L.I!. 77, 272 
 
 Ro ■ - -on i7. Rogerson, 1 885, 
 
 12 R. 583, 457, 458 
 
 Rolfe 17. Drummond, 1862, I M. 
 
 39, 435 
 
 Holland v. Holland, 1907, H 
 
 S.L.R., 77(i. 4(1(1. 11 13 
 
 Rose v. M'Leod, 1828, 7 S. I W, 159 
 Rosie 17. Mackay, 1910, S.C. 
 
 714, 
 Ross Trs . 1894, 21 It. 995, 
 
 r. .Mackenzie. 1889, 16 H. 
 
 871, 
 
 r. Ross, 1878, 5 R. L013, 
 
 17. Shaw, ist'.t. 111). 984, 
 
 17. Sinclair, 1904,20 S.C.R. 
 
 •SI 7, 
 Rothesay Town Council. 1898, 
 
 14 S.C.R., 189, 
 Rottenburg 17. Duncan, 1896, 
 
 21 R. 35, 
 Rowan t>. M'Laughlan,1905,7F. 
 
 542, 
 Roy V. Turner, 1891, IS R. 717, 
 Royal Bank <\ Stevenson, 1S4!'. 
 12 D. 251 1. 
 
 v. Securities Invest. Co. 
 
 1897, 1 S.L.T. 2:12. 
 Roxburgh v. Com. Hank, 1903, 
 19S.C.R. 248, 
 
 r. Selkirk P.C. and Dist. 
 
 Lun. Hoard, 1902,4 F. 468, 
 Russell 17. X.H. Locomotive 
 
 Co., 1908, 24 S.C.R. 367, 
 Rutherglen Parish Council 17. 
 ( Menbucket Parish Council, 
 1896, 33 S.L.R. 368, 
 
 893 
 
 235 
 
 596 
 
 41S 
 (121 
 
 692 
 
 1 385 
 
 603 
 
 '.i7i 
 (141 
 
 (174 
 
 643 
 
 598 
 
 764 
 
 s7:i 
 
 801 
 
 Sampson 1 . Eough, 1886, 13 R. 
 
 1154, 531 
 
 Samuel 17. Samuel. 1909, 25 
 
 S.CH. 99, 80, 1182 
 
 Sandilands ''. Sandilands, 1848, 
 
 Ki D. 1091, 2(17 
 
 Sawer's Factor 17. Sawers, 1889, 
 
 17 R. 1, 673 
 
 Sawers r. Balgarnie, 1858, 
 
 21 D. 153, 931 
 
 Scales /-. Commercial Hank, 
 
 1839, 1 D. 465, 384 
 
 Set i7. Banks, 1628, Mor. 
 
 6016, 33 
 
 Scott r. Cook, 1886, 21 S.L.R. 
 
 34, 95, 626 
 
 ,, Scott, 1911, 27 S.C.R. 
 
 1182 
 
 Note.— The Number* refer to Paragraphs not to Payes.
 
 INDIA OF CASES CITED. 
 
 Til 
 
 Sootl v. Letham, 1844, 6 Bell's 
 
 A,,. ( a. 126, 1388 
 
 Scot! ish < !o < )|icr.ui\ e Society 
 v. ( llasgo^ Fli nee 
 
 . L898, 35 S.L.R. 
 645, 
 — I 'Mi i.il Railway < '<>. v. 
 uaon, 1863, I M 750, 
 i I i 
 
 Donald, 1902, 9 S L.T. 
 348, 
 
 Pro. \ surance ( !o. v. 
 
 Christie, 1859,21 D. 333, 
 
 951, 958 
 
 Eer. Sec. < !o. v. Allan, 
 
 1876, 3 R. 333, 
 Sandbach v. Caldwell, 1825, 1 
 
 313 
 
 21 I 
 
 666 
 
 1212 
 
 Sinclair v. Bmith, I860, 22 D. 
 
 1475, 215,217 
 
 L lly Iron ' 
 
 1905, 13 S I- I. I"-. 437 
 
 — v. Speuce, 1883, I" R. 
 
 1077, 1363 
 
 v. Stark, 1828, 6 S. I 
 Skimp p. v. Baxl 
 
 I:, p . 1897, 24 R. 744, 1214 
 
 Sleigh v. G 
 
 vaal Options, Ltd., I!"'::. 
 
 :, I'. 332, 506, 509 
 
 Smart & ( !o. v. Stewart, 1911, 
 
 19 S.L.R. 66, 63 
 Sin. Hie v. Thomson, 1868, 6 M. 
 
 1024, 165 
 
 v. VVhitelaw, 1907, 1 1 
 
 S.L.R. 586, 750 
 
 Smith v. Baird, 1799, Mor. 
 
 8043, 1207 
 
 ,.. Burns, 1847, 9 D. 1344, 648 
 
 ,.. Gordon, 1908, 15S.L.R. 
 
 513, 
 
 „, Ninian, 1826, 5 681 
 
 v. New Rossleigh Co., 
 
 1902, 10 S.L.T. 273, 311 
 v. lnglis, 1881, 15 S.L.R. 
 
 563, 370, 372 
 
 ,.. Manson, 1871,9 M. 492, 29 
 
 ,-. M'Clelland, L843, 6 D. 
 
 331, 934 
 v. Owners of Crystal 
 
 Spring, 1890, 7 S.C.R. 67, 198 
 r . Robertson, 1828, 5 S 
 
 788, 29 
 ,.. Stoddart, 1850, 12 D. 
 
 1185, 231 
 
 Scotl h Legal Society, 
 
 1912, S.C. 611, 1306 
 
 v. Smith. 1889, 16 R. 392, 949 
 
 1874, 1 R. 1010, 91 
 
 v. Wilsons & Clvdc Co., 
 
 1893, '-'I R. 162, ' .".11 
 
 Smyth v. Gow, 1895, 2 S.L.T. 
 
 ' 17::. 182 
 
 Smoll v. Dundee Com-.. I^v - ,, 
 
 12 R. 126, 1402 
 
 Somerville v. Darlington, 1859, 
 
 21 D. 167, 935 
 r . Rowbotham, L862, 24 
 
 D. I is;. 
 r. Lord Advocate, 1893, 
 
 20 R. 1050, Ul 
 Si. in School Board v. Bone, 13 
 
 R. 768, 
 Soutar v. Mulh.in, 1907, S 
 
 723, 714 
 
 Spaulding v. Marjoribanks, 
 
 L903, II S.L T. 35, 341 
 
 Spite v. Bow A: M'Lachlan, 
 
 1908, -i S.C.R. 58, 530 
 
 Spottis woode t>. Hopkirk, 1853, 
 
 lti D. 59, 1178 
 
 Stafford v. M'Laurin, l s 7*.. 3 
 
 R, 148, 306, 634, 
 
 Note. — The Numbers refer to Paragraphs not to Pa 
 
 S. 173, 
 
 335 
 
 Shand, 1882, 1!) S.L.R. 562, 
 
 956 
 
 - v. Shand, 1832, lu S. 
 
 
 384, 
 
 120 
 
 Sharp v. Latheron Board, 1883, 
 
 
 in R. 1163, 
 
 L389 
 
 - iV Fail lie r. Canlen, l^J'J, 
 
 
 1 S. 31 t. 
 
 637 
 
 v. Garden, 1822, 1 S. 
 
 
 814, 
 
 348 
 
 v. Millar, 1861, _'. - 5 D. 
 
 
 1015, 
 
 99 
 
 pies o. Vuill. 1905, 7 F. 
 
 
 657, 
 
 750 
 
 Shanklandu. M'Gildowny,1912, 
 
 
 S.C. 857, 
 
 us 
 
 Shaw v. Kay, 1904, 12 S.L.T. 
 
 
 495, 
 
 -.17 
 
 (Hepburn's Trs.) v. Rex, 
 
 
 1894, 21 R. 11124, 
 
 067 
 
 Shepherd v. Elliot, 1896, 23 R. 
 
 
 695, 
 
 si 'J 
 
 Sheridan v. Peel, 1907, S.C. 
 
 
 577, 
 
 517 
 
 Shirra v. Robertson, 1873, 11 
 
 
 M. 660, 
 
 7;.:: 
 
 Shotts [ron < '<>. v. Turnbull, 
 
 
 1870, 8 M. 383, 
 
 305 
 
 Sim v. Muir's Trs., 1906, 8 Y. 
 
 
 1091, 
 
 206 
 
 r . Robinow, 1892, 19 R. 
 
 
 665, 
 
 157 
 
 ,-. Muir's Trs., 1906, 8 1'. 
 
 
 1091, 
 
 312 
 
 Simcock v. Scot. Imp. Insu. Co., 
 
 
 1901, ii S.L.T. 234, 
 
 552 
 
 Simla Bank v. Eome, 1870, 8 
 
 
 M. 781, 
 
 265 
 
 Simmons v. Miller, 1909, 25 
 
 
 S.C.R. 122, 
 
 11 II 
 
 Simpson v. lack, 1888, 16 R. 
 
 
 131, 
 
 616 
 
 „. Young, 1852, 11 D. 
 
 
 990, 
 
 113 
 
 Sinclair v. Baikie, 1884, 11 1«. 
 
 
 413, 4.;i 
 
 . 736 
 
 v. Edinburgh Parish( !oun 
 
 
 ,il, 1909, s.c. 1353, 
 
 687
 
 712 
 
 [NDKX OK CASES CITKI). 
 
 '.Hit 
 
 L206 
 
 208 
 
 160 
 
 1 102 
 46] 
 
 stand. Prop, [nvest. Co. /-. 
 
 Dunblane Bydro. Co., 
 
 Ltd.. I -si, L2R. 328, 
 Stark's Trs. v. Duncan, 1906, 
 
 8 r. 129, 
 Trs, v. Cooper's Trs., 
 
 1900, •_' F. 1257, 
 Staverl v. Stavert, 1882, 9 R. 
 
 519, 
 Steel v. G( rnirs., 1872, 
 
 10 M. 954, 
 
 v. Steel, 1898, 25 II. 715, 
 
 v. Lindsay, L881,9R. L60, 
 
 158, L63 
 Steedman v. Steedman, 1886, 
 
 23 S.L.R. 856, 502 
 
 Stephen v. Skinner, 1863,2 M. 
 
 287, 69 
 
 Stephenson v. Dobbins, L852, 
 
 11 D. 510, 375 
 v. Dunlop, 1841, 4 D. 248, 269 
 
 rison v. Sutcheson, 1885, 
 
 12 I!. 923, 367, 371, 607 
 
 v. Sharp, 1910, S.C. 580, 287,714 
 
 v. Stevenson, L893, 31 
 
 S.L.R. L29, 404, 546 
 
 Stewarl & < lo. v. Birrell, 1897, 
 
 5 S.L.T. 226, 508 
 
 „. Forbes, 1897,24 II. 112, 1198 
 
 v. G.N.S.R. Co., 1896, 
 
 23 II. 1005, 552 
 
 . Gordon, 1891, 19 II. 4. 225 
 
 v. Kennedy, 1890, IT R. 
 
 755, 504, 73.">, 755 
 
 v. Kerr, 1889, 17 II. 707, 1077 
 
 „. M'Dougall(1907), L908, 
 
 S.C. 315, 
 v. Macdonald, 1860,22 D. 
 
 1514, 
 
 ,-. Stewart, 1906, 8 F. 700, 
 
 ,-. Stewart, L887, 15 R. 
 
 113, 
 
 v. Wand, 1842, 4 1). 622, 
 
 Stillie's Trs. v. Stillie, 1898, 
 
 li S.L.T. 222, 
 Strain v. Strain. 1886, 2 S.C. R. 
 
 310, 007. 1184 
 
 Stricken P. < '. v. Goodwillie, 
 
 1908, S.C. 835, 200. 759 
 
 Struthers v. Dykes, L845, 7 1). 
 
 136, 
 Smart, r. Mitchell, L833, I I S. 
 
 1004, 
 
 v. St nan. 1869, 7 M. 366, 
 
 Summerlee Iron < !o. v. I !al. Ry. 
 
 Co., 1911, S.C. 158, 
 Sutherland v. ( loalen, is.")."). 1 , 
 
 1). 509, 
 v. Ritchie, 1900, 8 S.L.T. 
 
 100, 
 
 ,-. Squair. 1898,25 R. 656, 
 
 v. Thomson, 1876, '■'• R. 
 
 Symington v. Symington, 1874, 
 ' | R. 1006, 198, 1223 
 
 Symington v. Symington, 1875, 
 :; li. 205, 
 
 o:;i 
 
 119 
 
 1123 
 
 627 
 597 
 
 1186 
 103 J 
 
 187 
 
 439 
 
 .".Hi 
 150 
 
 581 
 
 404 
 
 552 
 
 101 
 104 
 
 Tait v. Gordon, 1828, OS. 1056, 
 
 v. Johnston, 1891, Is II. 
 
 606, I", •"li". 349, 1 123 
 
 v. Lees, 1903, 5 1'. 304, 711 
 
 Tannent v. Hannay, IsT.'J, 11 
 
 M. 932, 524 
 
 Tasker v. Grieve, 1905, 8 V. 16, 184 
 Tay 1 >istrict Fishery Board v. 
 
 Robertson, 1887, L5 R. 40, 1413 
 Taylor v. Ball, 1829, 7 S. 565, 576 
 
 v. Union Beritable Secy. 
 
 Co., 1889, 10 II. 711, 951 
 
 r. Ormond, 1906, 8 F. 
 
 (J. C.)76, H41 
 
 v. Steel-Maitland, 1913, 
 
 50S.L.R. 395, 123*3 
 
 Teenan's Trs. v. Teenan, 1886, 
 
 13 R. S33, 0f,s 
 
 Telford v. Perth District Corns., 
 
 21 S.C. R. 241, 1434 
 
 Tennent v. Crawford, 1878, 5 
 
 R. 433, 960 
 
 Tevendale v. Duncan, 1SS3, 10 
 
 R. 852, 1 1 s "> 
 
 Tierney v. Ballingall, 1800, 23 
 
 R. 512. 517 
 
 Tineman v. Tingman, 1854, 1 ( 
 
 I). 122, 265 
 
 Thirties. Copin, 1912, 29 S.C.R. 
 
 13, 1363 
 
 Thorn r. Aberdeen Magistrates, 
 
 1885, 12 R. 706, 1379 
 
 r. Mackenzie, 1864, 3 M. 
 
 177, 1186 
 
 Thompson V. Wilson's Trs.. 
 
 1895, 22 R. SCO, 172 
 
 Thomson v. Dailly, 1896,24 R. 
 
 1173, 814 
 
 r. Duncan. Is."..".. 1 i D. 
 
 1081, 616 
 
 „. Frazer, 1868, 7 M. 39, 448 
 
 v. N.B. Rly. Co., 1882, 
 
 II. 1102, '--' s 
 
 ,.. Seoular, 1882, R. 
 
 43(», L212 
 
 r. Whitehead. 1862,24 D. 
 
 331, ^ 201, 203 
 
 v. Simpson, 1844, 7 D. 
 
 106, ( 571 
 
 v. Thomson, 1008, S.C. 
 
 170, L225 
 
 Thorburn v. Dempster, 1900, 2 
 
 F. .".S3, 210, 425 
 
 Thow v. Thow, 1908, 21 S.C. II. 
 
 329, 3 7! 
 
 Toni Tyres, Ltd. v. Palmer 
 Tyres, Ltd., 1905, 7 F. 
 477, H99 
 
 Torbel v. Borthwick, is 10, 1 1 
 
 D. 694, 586, 004, 781 
 
 'hades Maiden Bospitalv. Mac- 
 Kersey, 1007, S.C. 73, 129 
 
 Note. Tht Numbers refer to Paragraphs not to Pages.
 
 INDKX OF CASES CITED. 
 
 713 
 
 Train v. Boott, 1911, S.C. 736, 266 
 Trainer v. Renfrew Bhire 1 1 
 
 Com . 1907, S.C. I NT. 725 
 
 Trimble v. Stewart & Shaw, 
 
 1908, 24 s.c.K., it:;, 860 
 
 Tullochv. M'Intosh, 1838.16S. 
 
 983, 754 
 
 Turnbull v. Borthwick, 1830, 
 
 735, 574 
 
 -. M'NaUghtOn,1850,12D. 
 
 L097, 1072 
 
 ,.. Oliver, 1891, 19 R. 154, its 
 
 Paul, L829, 8 S. L24, 269 
 
 Turner v. Turner, 1864, 2 M. 
 
 509, 424 
 
 Union Hank v. Macadam, 1880, 
 7 R. 655, 
 
 United Creameries Co. v. Boyd 
 
 & Co., 1912, S.C «;17. 1242, 1363 
 
 Collieries v. Gavin, 1899, 
 
 2 F. 60, 
 
 Kingdom Temperance re- 
 stitution ''. < ladder Local 
 Authority, 1877, I R. (J.) 
 39, 
 
 (Jrquhart i'. Anderson, 1883, 
 Hi R. 991, 
 
 r. M'Kenzie, 1824, 3S. 56, 
 
 '.Hit 
 
 866 
 
 1 l-Jl 
 
 1212 
 
 1018 
 
 Valenl ine v. < Irangemouth Coal 
 
 Co., L897, 35S.L.B. 12, 6(31 
 
 Vickers v. Nibloe, 1877, 4 R. 
 
 729, 367 
 
 Vincent v. Chalmers Trs. , 1877, 
 
 5 R. 13, 643, 659 
 
 Waddel o. Hope. 1S43, 6 D. 160, 7^7 
 Walker v. Arbroath Presby- 
 
 t, tv. 1876, 3 R. 198, n»i 
 
 „. Brown, 1860, •-'•J l>. 678, I L57 
 
 v . Bryce, L881, 9 R. 249, 1185 
 
 v. Stewart. 1855, 2 Macq. 
 
 424, 456 
 
 ... Walker, Is:;.".. 13 S. 128, 920 
 
 Wallaces Toy e, 1912,28 S.C. B. 
 
 198 
 v. Cohiuhoim, 1S23, 2 S. 
 
 127, 139 
 
 v. Eglinton, 1836, U S. 
 
 586 
 v . Fife Coal Co., 1909, 
 
 S.C. 682, 90 
 
 . Gibson, 1824, 3 S. 16, 920 
 
 . „. Henderson, L876, I R. 
 
 264, 'II s - Sl| l 
 
 w.Russell, 1862, 24D. 1141, 1214 
 
 r. West Colder < !o-op. 
 
 - \.. 1888, 15 R. 307, 848 
 
 Walter.-,'- Trs. r. O'Mara, 1902, 
 
 9 S.L.T. 395, 819 
 
 Wardlaw v. Drysdale, L898, 
 
 25 R. 879, 808 
 
 Warrand v. Watson, 1907, S.< 
 
 432, 796 
 
 190 
 
 1032 
 
 157 
 
 27 
 
 229 
 
 Watson v. Adams, 1849, I I D. 
 
 1263, 
 v. I.i 1902, •"> 1-'. 
 
 171. 
 v. M'Cutt -. ■ 5B. 
 
 843, 
 ,-. Stewart, 1872, L0 M. 
 
 I'll. 
 Watt v. Ligertw iod, ! .,1874, 
 
 1 R. (H.L.) 21, 
 v. Moffat, 1911,27 S.C.R. 
 
 356, 
 ... S.N.E.B 366, i 
 
 M. 318, 245 
 
 Wauchope v. N.B. Rly. ' 
 
 I860, 23 D. 191, H79 
 
 Webster v. Shiress, L878, 6 R. 
 
 L02 I 1 ".::, 1077 
 
 Wedderburn Pi t. (1910), 1911, 
 
 S.C. i. s "~ 
 
 Weil.l v. Weild, 1827, 
 
 247, 612 
 
 Weir v. Otto, 1-7". 8 M. L070, 
 Welsbach Lncandescenl ( !o. v. 
 
 M'Mann, 1901, I F. 395, 
 Welsh v. Cousins, 1898, 35 
 
 S.L.B. 656, 
 v. Eastern < lemetei j 
 
 1894, 21 R. 769, 
 Western Bank v. I touglas, I860, 
 
 22 D. 117, 
 Whealer v. Methuen, 1843, ■> 
 
 1). 1221, 
 Whillam v. Whillam, 1908, 24 
 
 S.C.B. 122, 
 White v. Spottisw le, 1846, 
 
 8D. 952, 182,221 
 
 White v. Steel, L894, 21 R. 
 
 649, 
 Whitefcnl v. Gibson, 18 
 
 S.L.T. 233, 
 Whittal v. Christie, L894, 22 
 
 R. 91, 
 Whyte, 1884, II R. 111"'. 
 Wic'k v. Wick, 1898, 1 F. 199, 
 Wightman v. Wilson, 181 
 
 D. 77'.', 
 Wildbridge v. Anderson, 1897, 
 
 25 R. (.T.C.) 27, 
 Wilkinson v. Bain, 1880, 8 R. 
 
 1205 
 803 
 
 120 
 
 55 1 
 '.il 
 
 817 
 
 1184 
 
 191 
 
 1157 
 
 814 
 
 681 
 139 
 229 
 
 234 
 
 7:::; 
 423 
 
 Willox v. Farrel, 1849, 21 Jur. 
 
 178, 
 Wilson, 1885, 13 R. 342, 
 Wilson v. Brackenridge, 1 S ^ N . 
 
 15 R. 587, 
 Wilson r.Juuor, 1907, 15S.L. I . 
 
 1 82, 
 ,-. Kernachan, 1911, 28 
 
 - C.B. 313, 808 
 . M'Kellar, 1896, 24 R. 
 
 254, 
 Wilsons v Clydet oalCo., Ltd., 
 rndnff (1910), 1911, 
 
 S.C. 647, 
 
 .\" Th Numbers refer to Paragraphs not to ■
 
 714 
 
 IXDKX OF CASES CITED. 
 
 Winchester v. Blakey, 1890, 
 
 17 R.1046, 
 
 v. Smith, 1863, 1 M. 685, 
 
 Winnans v. MacKenzie, 1883, 
 
 in R. 941, 
 Winana v. Macrae, 1885, 12 R. 
 
 1 I 15 1 . 
 Winter v. Edinburgh Magis- 
 trate . 1837, 16 S. 276, 
 Wiseman v. Skene, ls7o, 8 M . 
 
 661, 
 Witham v. Teenan's Trs., 1884, 
 
 11 R. 776, 
 Wood's Trs. v. Wood, 1900, 
 
 2 I". 870, 
 Woodward v. Wilson. 1829, 
 
 7 S. 566, 
 Wright v. Cunningham, 1802, 
 
 Mor. 15919, 
 
 v. Kellie, 1898, 1 F. 209, 
 
 /•. Stewart, L835, 13 S. 
 
 559, 
 ,-. Valentine, 1909, 26 
 
 S.C.R. 26, 151, 
 v. Wink, 1852, 24 Jur. 
 
 230, 
 
 Wright v. Wright, 1910, 26 
 
 672 
 
 S.C.R. Ill, 
 
 1224 
 
 1214 
 
 Wylie r. 1 1 « ri i .1 Mi- Sucy. Inv. 
 
 
 
 Co., 1871, 10 M. 253, 
 
 220 
 
 1175 
 
 ,•. Kv.l, 1884, 11 R. 
 
 
 
 820, 
 
 919 
 
 1 I'll 
 
 Wvllie v. Lawson, lsi;.">, 4 Irv. 
 
 
 
 HI, 
 
 1134 
 
 1389 
 
 
 
 '.H '.i 
 
 Yelverton, 1862, 24 M. 696, 
 
 547 
 
 
 Young, 1888, 16 R. 92, 
 
 923 
 
 '.Hi 
 
 v . Carter, 11)07, 14 S.L.T. 
 
 
 
 829, 
 
 265 
 
 ■ s 1 3 
 
 v. Glasgow Tramway Co., 
 
 
 
 1SS2, 10 R. 245, 
 
 848 
 
 1210 
 
 ,-. Graham, I860, 23 D. 
 
 
 
 36, 
 
 439 
 
 (lis 
 
 v. Livingstone, 1860,22 D, 
 
 
 21 
 
 '.is:;, 
 v. Mackenzie. Is.")!), 21 1 >. 
 
 175 
 
 652 
 
 1358, 
 v. Young's Trs., 1006, 14 
 
 607 
 
 412 
 
 S.L.T. 123, 
 Trs. v. Grainger, 1904,42 
 
 85 
 
 939 
 
 S.L.R. 171, 
 
 139:)
 
 INDEX.
 
 IX DKX. 
 
 Tl Numbers refer to PARAGRAPHS not to Pages. 
 
 Abandonment- 
 
 of action, - - •"''• ),; 598 
 
 of defence, 599-600 
 
 i - 723 
 
 01 appeal, - - - 
 
 Accounting 1 — 
 
 action of, 1178-1180 
 
 Action— 
 
 definition of, - - - " -'_'' 
 
 how commenced, - - " 
 
 date of, - 328 
 
 •>7± 
 ordinary action ; - " *** 
 
 summary cause, - - " „ 
 
 summarv application, - - 295-300 
 
 small debt, - " H06-1118 
 
 Actions (Special) 
 
 "I I 70 
 
 accounting, - _ 
 
 adherence and aliment , 81-88 j 1 :M G - 1 225 
 
 ad factum praestandum, - H' 4 
 
 adjudication, 
 
 aliment, " J 1 ^ 
 
 division of commonty, 
 
 employer's liability, - 1284-1288 
 
 ,.,•;■ ... - H93 
 
 exhibition, 
 
 • . 1; t ...--- 1194-1206 
 
 interdict, 
 
 Lawburrows, 
 
 march fences. 
 
 maills and duties, - 
 
 maritime, - - 1094-1098; 1104-1108; 1366-1370 
 
 poinding of ground, - 
 
 proving tenor, - 
 
 ^^~c - - - - ■ 1 _ 1 .) 
 
 rehefs " .: us] 
 
 sale and division, - - 
 
 , , • . 1043 L058 
 
 service of heirs. - 
 
 sett and sale,
 
 7 is INDEX. 
 
 Actions (Special)—* 'on tin ued. 
 
 separation and aliment, - 81-88; 1216-1225 
 
 trust Acts, - ' 14 5 3 
 
 trade unions, " 14:)0 
 
 w orkmen ' s compensation , 
 
 Acts of Sederunt — 
 
 nf - - - - 1165-1172 
 
 purpose or, - 
 
 Adherence and Aliment— 
 
 action of, 81-88; 1216-1225 
 
 removal to Court of Session, - 453 
 
 Adjudication 
 
 action of 
 
 crofters, 
 removing, 
 
 106 
 
 effect oi, 
 
 Adjustment— 
 
 of pleadings. 415 " 41 ^ 
 
 Admiralty 
 
 ■ ■{-,■ ... 124-127 
 
 jurisdiction, 
 
 Ad factum praestandum 
 
 action, - " - 1174 
 
 496 
 
 Affirmation— 
 
 form of, - 
 
 Agent— 
 
 See Law Agent. 
 
 Agricultural Holding's Act 
 
 arbitration, - 1230-1244 
 
 bequest of lease, 
 
 1229 
 995 
 
 Aliment- 
 action of, - 1181-1186 
 
 interim, 
 
 Alimentary Debt 
 
 nature of, - 
 imprisonment for, 
 
 XoTE. — The Numbers refer to Paragraphs not to Pages. 
 
 9] 
 
 698
 
 i.\i>i:.\. 719 
 
 :,-7 
 
 Amendment- 
 undefended ca 
 defended cause, 
 pursuer, 
 defendei . 
 adding parties, 
 
 Appeal 
 
 to Sheriff, - -719 
 
 to Court of Session, 
 
 value restriction, - 
 
 mode of, 
 
 notice of, - 
 
 effect of, 
 
 time for, - 
 
 abandonment of, - ... 
 
 bar of, 
 
 by leave, 
 
 advisory, - - - - 
 
 incidental, - - 
 
 interlocutory judgment, 
 
 final judgment, 
 
 jury trial, 
 
 summary cause, 
 
 stated case. 
 
 Small Debt Court, 
 
 Agricultural Holdings Act, 
 
 Board of Trade inquiry. 
 
 Heritable Securities Act, 
 
 Local Government Acts, 
 
 municipal, - - - 
 
 Pilotage Act, - - - 
 
 Appearance- 
 notice of, - - - 37G 
 
 Application (Summary) 
 Set Summary Application. 
 
 Arbitration Act, 1894 
 proceedings under. 
 
 755 
 
 758 
 
 - 
 
 756 
 
 711 
 
 -715 
 
 721; 
 
 717 
 
 - 
 
 722 
 
 
 7 25 
 
 
 
 - 
 
 
 7 1.-'; 
 
 768 
 
 - 
 
 7 37 
 
 
 778 
 
 - 
 
 749 
 
 - 
 
 731 
 
 - 
 
 730 
 
 84! 
 
 2-848 
 
 - 
 
 738 
 
 77 
 
 1 777 
 
 
 1117 
 
 1230-1237 
 
 - 
 
 1101 
 
 - 
 
 1320 
 
 
 L345 
 
 
 HOI 
 
 
 1371 
 
 L 24 1 - 1 244 
 
 Arrestment— 
 
 competency of, - 
 
 subjects of, - - - 188-192 
 
 prior to service, - 32B > : '"'- : '''" 
 
 Won.— The tfunib ■■ Paraorapbs not to Pa
 
 720 INDEX. 
 Arrestment continued. 
 
 on dependence, - - - - 306 
 
 execution of, ... . (53(5 
 
 reporting, - - 638 
 
 date of, ... 645 
 
 recall of, 641; 1127 
 
 prescription of, - 639 
 
 precept of arrestment, - 633 
 
 letters of arrestment, - 182 
 
 ad Eundandam jurisdictionem, 181-197 
 
 alimentary funds, - 646 
 
 rent, - . . . (548 
 
 ship, - - 655 
 
 wages, - 646 
 
 action of constitution, - 186 
 
 Small Debt Court, - - 1127 
 
 Arrestee^ 
 
 liability of, - 652-656 
 
 Association (voluntary) 
 
 domicile of, - - - - 260 
 
 citation of, - - - - 259 
 
 Assignee— 
 
 as pursuer, - - - 244 
 
 sisting of, 245 
 
 extract to, - 621 
 
 Assessor — 
 
 nomination of, - - 489 
 
 Employers' Liability Act, 486; 1288 
 
 maritime causes, - - 483 
 
 jiatent causes, - 487 
 
 pilotage appeals, - - 1372 
 
 workmen's compensation causes, - - 488 ; 879 
 
 Attestation- 
 form of oath, - - 496 
 form of affirmation, - 496 
 
 Auditor of Court- 
 office of, - 30 
 objections to report of, - .... 798 
 
 Averments- 
 inconsistent, - ... 418 
 proof of mixed, - -.-.... 450 
 
 Note. — The Numbers refer to Paragraphs not to Pages.
 
 INDKX. 721 
 
 Banker's Books— 
 
 See Documhni \uv Evidbi 
 
 Bankruptcy 
 
 jurisdiction, - - ■ ( *^ u 7 
 
 plea in bar, - - ■ *28 
 
 debtor's application, ■ 910 
 
 creditor's application, 911 '■''■' 
 
 company debtor, - - -96 1 
 
 deceased debtor, - ■ ^' J l 
 
 form of application, ■ 908 
 recall of award, 
 
 interim preservation of esl - 926 
 
 bankrupt's title to sue, - - - --•> 
 
 bankrupt's law agent, - 
 
 election of trustee, - '•''' 
 
 removal of trustee, - 920 92 1 
 
 commissioners, 
 
 925 
 
 creditors' inviting, - - - 917 
 
 examination of bankrupt, 928-930 
 
 examination of third parties, - - 931 
 
 depositions, - - - 933 
 
 creditors' rights at examination, - - 936 
 
 enforcing production of documents. - 941 
 
 imprisonment of bankrupt, - - 941-943 
 
 gratuitous alienations, - - - 959 
 
 administrative advice of Court, - ... 944 
 
 composition settlement, - - - 951 
 
 deed of arrangement, - ... 945-950 
 
 discharge of bankrupt, - ... - 954 
 
 discharge of trustee, - ... 953 
 
 appeal, - - 952-960 
 
 cessio proceedings, - - - 960 
 
 Bequest of Lease 
 
 under Agricultural Holdings Act, - - - - 1240 
 
 Births, &c, Registration 
 See Registration. 
 
 Board of Trade Inquiries 
 
 pro,,,!,,,,. - 1":'! 
 
 assessors, - - - - - - 1102 
 
 judgment. 
 
 re-hearing. - - llOo 
 
 Note The Numbers refer to Para&raphs 
 
 46
 
 722 INDEX. 
 
 Board of Trade Inquiries— continued. 
 
 costs, - - - - - 10 " 
 
 report to Board of Trade, - - "112? 
 
 appeal, - - 
 
 Borrowing 1 Process- 
 
 ■svho may borrow, 
 failure to return, - 
 
 1101 
 
 Body- 
 burial of, - 
 disinterment of, - 
 
 295 
 
 381 
 383 
 
 Breach of Interdict- 
 action of, - - - 1203-1206 
 appeal, - - 1206 
 
 Breach of Sequestration, - 1034 
 
 Burgh— 
 
 See Municipal Administration. 
 
 Building" Societies- 
 officials, - - - - 1261 
 liquidation, - ... - - 1262 
 
 Burial Grounds- 
 closing of, - - 1263-1265 
 
 Bye-Laws— 
 
 confirmation of, - 1384-1386 
 
 Capital- 
 certificate of issue of, - - !337 
 
 Carrying- on Business- 
 meaning of, ------ 17 J 
 
 jurisdiction in respect of, 173-180 
 
 Caution- 
 er expenses, - - - - 225; 234; 788 
 in recall of arrestments, - - - 653 
 in removings, - - - - 1019 
 in suspension, ■ H" 
 lawburrows, - - 120/ 
 
 Note.— The Numbers refer to Paragraphs not to Pages.
 
 [NDEX. 723 
 
 Cautioner— 
 
 when may be sued, 
 
 9 1 7 
 action of relief by, 
 
 Caveat- 
 iii interdict process, "01 
 
 Cessio— 
 
 form of action. 
 
 Charg-e— 
 
 who may charge. 
 
 Children— 
 
 as witnesses, 
 legitimation of, 
 custody of, - 
 order for custody, 
 guardianship of, 
 
 970 
 
 wh<> may insist in action, - - - •' ' * 
 
 notour bankruptcy of debtor, 9 & 7 
 
 conversion into sequestration, 
 
 971 
 first deliverance, - - 
 
 first diet, 
 
 failure of debtor to attend, - '■''_■' 
 
 examination of third parties, 9 ' 6 
 
 discharge of debtor, 
 
 discharge of trustee, - i "° 
 
 appeal, - ° 80 " 985 
 
 621 
 
 .. ' t - - - - 622 
 
 execution ot, 
 
 postal, when competent, 
 
 fi^3 
 endorsation of warrant, - - °-" J 
 
 induciae, - - 
 
 effect of error in, - 
 
 against Corporation, 
 
 suspension of. 
 
 628 
 
 626 
 
 625 
 
 113-123 
 
 492 
 
 1255 
 
 92 
 
 1280 
 
 L282 
 
 Citation- 
 
 when not required, 6 -° 
 
 form of, 
 
 .. , ... '351 
 
 execution ot. 
 
 326 
 inducia, - 
 
 challenge of execution, - 
 
 , . - 32 I : 348 
 
 remedy of error, - 
 
 postal, - '-■ j;;- 
 
 endorsation of warrant. 
 
 Notb.— The Numbers refer to Paraoraphs not ><> Pages.
 
 724 INDEX. 
 
 Citation — continued. 
 
 re-service - - 348 
 
 personal, - 219; 329; 342 
 
 by officer, - - - 329 ; 343 
 
 meaning of " servant," ... - 344 
 
 by law agent, - - - 330 
 
 keyhole, - - 342 
 
 edictal, - 334-337 
 
 outwith sheriffdom. - 346 
 
 consistorial causes, - - 345 
 
 Small Debt Court, - 342 
 
 of witnesses and havers, - - 500 
 
 Civil Imprisonment- 
 competency, - - ... - 695 
 procedure, - - 696 
 
 Claim- 
 in multiplepoinding, - - - 670-675 
 riding claim, - - 666-674 
 small debt, - - - 1107-1109 
 
 Closing" Record 
 
 procedure in, 
 effect of, 
 
 415 
 425 
 
 Clubs 
 
 granting certificate, ------- 1268 
 
 cancelling certificate, - - - - - 12(0 
 
 Commissioners Clauses Act- 
 defaulting officials, - - 1272-1276 
 
 Commissary Court- 
 origin, - - - - - - - - - 73»78 
 
 forum, ----- ... 1068 
 
 executor nominate, - - - - - -1061 
 
 implied nomination, - - - 1069 
 
 executor dative, - - - - - - - 1062 
 
 opposed application, - - - - 1063 
 
 conjoining applications, ------ 1071 
 
 confirmation, .... - - 1066 
 
 recall of appointment, - - - - - - 10(0 
 
 foreigner as executor, - - - 10(9 
 
 married woman, -------- 1077 
 
 Note. — Tin Numbers refer to Paragraphs not to Pages.
 
 index. m 
 
 Commissary Court — continued. 
 Legatee, 
 
 1078 
 
 minor, - - 107G 
 
 executor creditor, - - -1072-1075 
 
 (sealing repositories, 
 
 small estate, 
 
 estate of missing person. - - - 1082-1088 
 
 Commission- 
 to take evidence, - •'-•' 
 to recover documents, - - • ) " 1 •'-'' 
 
 Commissioner— 
 
 who may act, 
 
 procedure before, 
 
 report of, 
 
 fees of, 
 
 recovery of documents, 
 
 529 
 
 507 
 
 Commonty— „ nn 
 
 division of, - - - - 1187 - 1190 
 
 Companies Clauses Act— 
 
 defaulting official, 
 claims, 
 
 Condescendence— 
 
 purpose of, - 
 form of, 
 
 Confidentiality- 
 appeal upon, - - 
 
 Confirmation— 
 
 ot' executor, - 
 of bye-laws, - 
 
 Conjugal Rights ActS- 
 proceedings under, 
 
 1279 
 
 395 
 396 
 
 559 
 
 - 1066 
 L384 
 
 L329 
 
 Conjunction- 
 competency of, 
 ob contingent iam. 
 
 NoTM.—The Numbers refer to Paiuorai-bb not to 
 
 120-422 
 439
 
 726 INDEX. 
 
 Consignation— 
 
 order for, - - .... 432 
 
 of stamp duty, - - ... . 510 
 
 statutory, - ...... 435 
 
 Consenter — 
 
 liability of, - - - 314 
 
 Consistorial Causes- 
 jurisdiction, - - 79; 1216-1225 
 citation, - - ... 1221 
 arrestment on dependence, - - - 1223 
 inquiry before decree in absence, - ... 353 
 expenses, - 1224 
 removal to Court of Session, - - 453 
 
 Contingency— 
 
 conjunction in respect of, - - 420-423 
 
 Contract- 
 jurisdiction ratione contractus, - - 215-218 
 
 Convict — 
 
 how sued, ..---.... 224 
 
 Copartnery— 
 
 instance of action, ..... 248 
 
 after dissolution, - .... 250 
 
 diligence against partner, - ... 249 
 
 Corporation- 
 instance of action, ... ... 262 
 
 officials called, - - 263 
 
 Counter Claim- 
 nature of, - - - - - 405 
 relevancy of, - ..... 406 
 defence by way of, - - 404 
 abandonment of, - - - - 408 
 in Small Debt Court, - - - - 1141-1143 
 
 Court Dues- 
 regulation of, - ... HG8 
 
 Court of Session- 
 removal of cause to, 451-453 
 
 Note. — The Numbers refer to Paragraphs not to Pages.
 
 INDEX. 
 
 727 
 
 Counsel— 
 
 appearanoe by, 
 
 of, 
 
 50 
 
 - 1 ■_' 
 
 Counties— 
 
 amalgamation of, 
 
 C rave- 
 restriction of, 
 
 Cross Examination, 
 
 10 
 
 355 
 
 554 
 
 Curator 
 
 added to instance, 
 
 ad litem when required, 
 
 Custody of Children- 
 action for, 
 
 240 
 236 
 
 92-93 
 
 Dairy- 
 closing of, - 
 
 Dang-erous Building- 
 protection of, 
 
 Deaf and Dumb Person— 
 
 evidence of, - 
 
 Dean of Guild Court, - 
 
 Declaratory Actions- 
 competency, - 
 
 exceptions, - 
 
 Declinature of Jurisdiction- 
 era sons for, - 
 
 Deed or Writing--- 
 
 challenge of ope exceptionis, - 
 
 Descriptive Firm- 
 instance of action, 
 diligence against, - 
 
 Note.- The Numbers refer to Paragraphs n 
 
 1395 
 
 1391 
 
 243 
 111 
 
 123 
 129 
 
 L37-139 
 
 402 
 
 251 
 252
 
 728 INDEX. 
 
 Decree in Absence— 
 
 meaning of, - ... - - 3o8-377 
 
 exceptions, --------- >5o 
 
 minute craving, ----- - 357 
 
 finality of, - - _ 3 °* 
 
 reponing, - - - 
 
 in workmen's compensation cause, - - - 
 
 366-375 
 
 862 
 
 604 
 
 Decree in foro — 
 
 meaning of, - - - 
 
 for payment, - - '^" 
 
 in multiplepoinding, - - 680 
 
 interim, - - ... - - 4'_8 
 
 Decree by Default- 
 when granted, - 386 ; 605-612 
 in workmen's compensation cause, - 864-868 
 in jury cause, ------ • oji 
 
 Decree ad factum praestandum— 
 
 execution of, 1175-1177 
 
 Defended Cause- 
 meaning of, -------- 376 
 
 Defender- 
 definition of, - - - - - - - - 311 
 
 special character, ------- 322 
 
 joint defenders, ----- 311 
 
 in heritable action, - - 210 
 
 Defences- 
 form of, - ... - - 397 
 due date of, - - - - 398 
 
 joint defence, ----- - - 401 
 
 separate statement of facts in. 3! > 7-400 
 
 counter claim, ----- - 404 
 
 qualified admissions in, ... - 379 
 
 challenge of deeds or writings ope exceptionis, - 96 
 
 Delict- 
 jurisdiction ex delicto, - - - 204-206 
 
 Delivery- 
 action of, in Small Debt Court, - - 1121-1123 
 
 XoTE. — The Numbers refer to PARAGRAPHS not to Pages.
 
 INDEX. 
 
 Dilatory Pleas— 
 
 8ei Plbab in Law. 
 
 Diligence 
 
 effect of, - 
 
 Small Debt Court, - 1145-1146 
 
 Disclaimer — 
 
 minute of, - - GOO 
 
 Division of Commonly— 
 
 action of. - - - - 1187-1190 
 
 Division and Sale 
 
 action of, - - 1191-1192 
 
 Drainage Act, 1847— 
 
 procedure under, - - 1342 
 
 Drainage, &e., District- 
 appeal against resolution forming, - - 11-5 
 
 Documentary Evidence- 
 recovery of documents, - - 504-518 
 unstamped document, - 509-512 
 official documents, .... -513 
 
 banker's books, - - -513 
 
 Dominus Litis— 
 
 meaning of. -. - .... 313 
 
 sisting of, - - - - 319 
 
 liability of, ... . 315-320 
 
 Domicile — 
 
 meaning of residence, - - - - 161-164 
 
 derivative, ------- . \r,:\ 
 
 change of, - - - 165 
 
 person with no fixed, - - - - . 169 
 
 military men, ------- 1 1 ; _- 
 
 seafaring men, - - - - - - - - ir.-_' 
 
 citation within forty days of leaving, - 166 168 
 
 Double Distress- 
 meaning of, - - - - - - . - . 1 
 
 Notb.— Tht Numbers refer to Paraqrapbb not to /v
 
 730 INDEX. 
 
 Ecclesiastical Building's Act- 
 proceedings under, - - - 101-103 
 
 Edictal Citation, 334-337 
 
 Ejection- 
 summary, - - - 1020-1026 
 Small Debt Court, - - 1132 
 
 Election Petition- 
 burgh councillor, - ------- 1379 
 
 parish councillor, .... - 1409 
 
 Emigrant Runner- 
 licensing of, ----- _.- 1362 
 
 Employers' Liability Act, 1880— 
 
 procedure under, - - - 1284-1288 
 
 assessor, --------- 1288 
 
 Endorsation of Warrants— 
 
 when necessary, ------ - - 346 
 
 Entails- 
 statutory jurisdiction, ----- - 1289 
 
 procedure, - - 1290 
 
 appeal, - - - - - - - -1291 
 
 Entering- Appearance- 
 notice of, - - 376 
 
 Estate Duty- 
 appeal, 1292-1294 
 
 Evidence- 
 documentary, ----- - 504 
 
 secondary, - - - - 546 
 
 to lie in retentis, - - 525 
 
 record of, - 565 
 
 correction of notes of, - 567 
 
 Exception — 
 
 defence by, - - - •'" 
 
 Exchequer Causes 
 
 jurisdiction, - - - - 99 
 
 Note. — The Numbers refer to Paragraphs not to Pages.
 
 INDEX. " :;l 
 
 Execution— 
 
 of citation, - ■"'-"■' •"' , ' 1 
 
 of arrestment, 
 
 of charge, - - i; -" ; - : ' 
 
 Executors— 
 
 confirmation of, - - • (l,;1 1079 
 
 Exhibition- 
 action of, " • ] l93 
 
 Expenses— 
 
 liability for, - - 
 
 crave for, ■ ™° 
 
 incurred before service, - 
 
 - DO 
 
 caution for, ------ ,OG 
 
 in decree in absence, - 
 
 , 797 
 
 in decree in foro, - - - - 
 
 795 
 modification of, 
 
 taxation of, - 
 
 objection to auditor's report, - 798 
 
 interim expenses, ------ ' cb 
 
 agent and client expenses, - 790-791: 1224 ; 1451 
 
 decree in agent's name, - 66 5 802-80o 
 
 reservation of, 
 
 partial award, ------ ° 
 
 in action of multiplepoinding, 
 
 counsel's fees, - 
 
 Extract- 
 period, - - 
 
 shortening period, 
 form of, 
 essentials of, 
 error in, 
 
 effect on appeal, - 
 of decree in absence, 
 
 617 
 362 
 363 
 
 3ul 
 743 
 360 
 
 Factor- 
 interim, ------ 
 
 judicial. - - - 1330-1336 
 
 Falling: Asleep- 
 
 wakening procedure, - 
 
 Wots.— The Numbers refer (o Paraqbapbs noi to
 
 782 INDEX. 
 
 Fatal Accident Inquiry- 
 procedure, - - - 1089-1093 
 
 Feu Duty— 
 
 irritancy for non-payment of, - - 1013 
 
 Fiars Court, 132 
 
 Final Judgment— 
 
 meaning of, - - - iov 
 
 Finance Appeals- 
 estate duty, - - - - 12^2-1294 
 site value. - 1295-1297 
 
 Fish Teinds— 
 
 allocation of, - - 1298-1301 
 
 Foreigner— 
 
 jurisdiction, 
 
 Guardianship of Infants- 
 statutory powers, - 
 
 Harbour Damage— 
 
 recovery of, 
 
 181-182 
 
 Friendly Societies- 
 defaulting official, ----- - 1307 
 
 disputes under Friendly Societies Acts - - - 1306-1309 
 
 disputes under Industrial Societies Acts. - - 1304-1305 
 
 Furthcoming'— 
 
 Ordinary Court, - 657-660 
 
 Small Debt Court, - 1129 
 
 Fugse Warrant, - • 134 
 
 1282 
 
 1370 
 
 501 
 508 
 
 Haver- 
 definition of, - 
 
 duty of, 
 
 examination of, 
 
 Note.— The Numbers refer to Paragraphs not to Pages.
 
 INDEX. >■<■> 
 
 Hearing-, 
 
 Heirs— 
 
 Set Servk b oi Hi ras. 
 
 Heritable Action— 
 
 competency, 104-105 : 211 
 
 exceptions, 
 
 forum 
 
 In.) 
 
 removal to Court of Session. - HO 
 
 Heritable Securities Act, 1894— 
 
 notice, - - - 1: '' 1 '' 
 
 interdict against creditor, - -1311 
 
 ejection of proprietor. - -1312 
 
 realising subject, - ' 0l '- 1 -* 1 ' 
 
 Leasnig subi< * LOl ° 
 
 • i •» i *a 
 
 pari passu security, - '" 
 
 effect of decree, - - - 1316 
 
 appeal, - - U ' 20 
 
 Homings, Register of— 
 effect of registration in, 
 
 629 
 
 Housing- and Town Planning-— 
 
 • -i 1322 
 
 jurisdiction, ... - - i- -- 
 
 appeal against orders of local authority. - 1323 
 
 House Letting- and Rating- Act, 1911— 
 
 application of, - - loZl 
 
 fixing landlord's commission. - - 1321 
 
 - 99G-1001 
 
 removing, 
 
 Husband and Wife— 
 
 liability for antenuptial debts, > 
 
 dispensing with husband's consent to deeds. - 
 
 protection order. - 1325-1327 
 
 recall of order, - - ■ I:: '-' 7 
 
 actions of adherence and aliment and separation and 
 
 ' aliment, - 1216-1225 
 
 Implement— 
 
 , , • 374 
 
 what is, 
 
 .Y (J . Th( Numb ■ PAAA8BAPB& Mi '
 
 73-1 INDEX. 
 
 Imprisonment— 
 
 when competent, 
 
 essentials of, 
 
 Insane Person 
 
 Interest- 
 crave for, 
 
 695 
 
 procedure, - -------696 
 
 Indueiae of Citation 
 
 normal, 
 
 326 
 
 exceptions, - .... 326 
 
 shortening, - 326 
 
 Industrial Societies- 
 settlement of disputes, - - - - 1304 
 
 Inhibition- 
 competency, - - - - - ■ " -69 J 
 
 execution of, " 700 
 
 effect of registration of, ------- 700 
 
 Initial Writ- 
 compulsory use of, * 303 
 exceptions, ------ " ouo 
 
 form of, - - 304 
 
 305 
 
 signature of, - - -67; 307 
 
 custody of, - - 308 
 
 241 
 
 as pursuer, ------ 
 
 as defender, ------- 
 
 Inspection— 
 
 by parties, ------ 
 
 by Court, ----- - 481 
 
 Instance— 
 
 of action, - " 311-323 
 
 amendment of, - 
 
 - 305 
 
 Interdict- 
 action of. - - - - 1194-1206 
 forum, - - - 11" 
 interim, - - I 200 
 
 breach of, - " I 203 
 
 Note.— The Numbers refer to Paragraphs not to Pages.
 
 INDEX. 735 
 
 Interdict — continued. 
 
 appeal, -736 
 
 third party, ' lli)7 
 
 caution in, - 
 
 Interim Decree- 
 when granted, ----- 
 
 - 431 
 
 - 430 
 
 extract, 
 appeal, 
 
 Interlocutory Judgment— 
 
 appeal, - 731-7:; I 
 
 Irregular Marriage— 
 
 registration of, - 1257-1259 
 
 Irritancy— 
 
 declarator in removing, - - - 1015-1018 
 
 Joint Defenders- 
 jurisdiction, - - - - 170 
 
 action against, - - - - - - - -312 
 
 Joint Litigants- 
 
 expenses, 
 
 789 
 
 Judgment— 
 
 form of, - - 601 
 
 date of, ----- - 602 
 
 correction of error in. - - - - - - 603 
 
 meaning of final, ----- - 730 
 
 07 
 
 Judgments Extension Act- 
 scope of, 
 
 procedure, - - 702-710 
 
 Judicial Reference- 
 nature of, - - 456-459 
 
 when competent, - - - - - 
 
 XoTE.—Thr Numbers refer to Paragraphs not to 
 
 !"."
 
 730 INDEX. 
 
 Judicial Factor 
 
 meaning of, - 
 
 . . ,. ?. 1330 
 
 lunsdiction, - 
 
 J . nt ... - 1331-1333 
 
 appointment of, 
 
 recall of appointment, - - - 133 ^ 
 
 discharge of factor, - - " J 336 
 
 application for special powers, - - 1 - ,,)1 
 
 Jurisdiction 
 
 __.--- 156 
 
 privative, - 
 
 K ,. + ' n( _ - - - 137-139; 1447 
 
 declinature ot, > 
 
 141-148 
 
 - 170 
 181-192 
 
 - 173 
 72 
 
 •-'15-218 
 157-159 
 208-218 
 200-203 
 204-206 
 
 - 1110 
 
 exclusion of, 
 
 against joint defenders, 
 
 founded on arrestment, 
 
 founded on carrying on business, 
 
 consistorial, - 
 
 ratione conti -actus. 
 
 ratione domicilii, - 
 
 ratione rei sitae, - 
 
 ex reconventione, - 
 
 ex delicto, - 
 
 Small Deb1 Court, 
 
 Juror 
 
 qualification of, 
 payment of, - 
 
 826 
 834 
 
 Jury Trial- 
 removal to Court of Session for, - 752-753 
 in Sheriff Court, - 820-852 
 juror's qualification, ------- 826 
 
 , 897 
 
 excepted persons, - - " ° j| 
 
 juror's remuneration, - 834 
 
 evid* ... - - 836-838 
 productions, ... ... 839 
 
 verdict, ... - 840 
 
 applying verdict, ----- - 841 
 
 expenses, ------ - - 852 
 
 judgment, - ... - - 849 
 appeal, - - - 
 
 842-848 
 
 Lands Clauses Act — 
 
 certifying company capital, - - 1337 
 
 compensation claims, - - 1338-1340 
 
 Son;. — Ili> Numbers refer to Pabaqrapbs vol to Pages.
 
 l\hK\ 737 
 
 Land Drainage Act 
 
 jurisdiction, - .... -134] 
 
 maintenance of works. 
 
 Lawburrows 
 
 action of. - • 1207-1208 
 
 Law Agent 
 
 qualification oi'. ■ •'- •'•' 
 
 female barred, - ■" 
 
 enrolment , •' ' •''' 
 removal from register, 
 
 what is '" practising," - •'"' i 
 
 borrowing process, - - -307 
 liability for negligence. 
 
 mandate, - - , ''• , 
 
 fees, - - - 65 
 
 charge upon property recovered for fees, - Gl-61 
 
 in Court of Session case - -58 
 
 poor law agents, - - " 1158-1 !••■> 
 
 Lease- 
 bequest of. ..--- - 1140 
 
 Legitimation 
 
 per subsequens matrimonium. 1255 
 
 Letters of Arrestment— 
 
 Court which may grant, - 199 
 
 how obtained, 
 
 duration of, - * * ■ ' 
 
 Letter of Request 
 
 for examination of witness abroad 531-535 
 
 Litigants- 
 corporations and firms, 262-263 
 insane person. -*' -'- 
 joint litigant-. 
 
 public bodies, 262 ; 1406 
 
 pupil, - 
 
 vexatious litigant, 264 
 
 voluntary association, 
 
 XniE. — Th* Numbers refer to Paragraphs 
 
 17
 
 738 
 
 INDEX. 
 
 Local Government- 
 county buildings, - 
 closing common lodging-houses, 
 piers and ferries, - 
 fire engines, 
 
 adjustment of county and burgh interests, 
 appeals, 
 
 1348 
 1433 
 1346 
 1347 
 1344 
 1345 
 
 Lunacy 
 
 cognition of insane person, 
 inspection of asylums, - 
 committal of lunatic, 
 discharge of lunatic, 
 criminal lunatic, 
 dangerous lunatic, 
 escaped lunatic, 
 expenses, 
 
 - 1349 
 
 - 1350 
 1351-1353 
 
 - 1356 
 
 - 1355 
 
 - 1353 
 
 - 1357 
 
 - 1354 
 
 Maills and Duties 
 
 action of, 
 
 1210 
 
 Mandate— 
 
 production of, 
 
 when falls, - 
 
 271 
 268 
 
 Mandatory 
 
 when necessary, 
 dispensing with, 
 pendente lite, 
 qualification, 
 liability, 
 sisting, 
 
 265-266 
 267-270 
 
 - 272 
 
 - 269 
 
 - 268 
 
 - 265 
 
 March Fence- 
 action for straightening. 
 
 1209 
 
 Marriag-e— 
 
 registration of irregular, 
 
 1257 
 
 Married Woman 
 
 as litigant, - 
 as executrix, 
 protection order, - 
 husband's consent to deeds. 
 
 229-234 
 
 - 1077 
 1325-1327 
 
 - 1329 
 
 Note. — The Numbers refer to PARAGRAPHS not to Pages.
 
 ENDEX. 
 
 
 Maritime Causes 
 
 citation in, .... 
 
 evidence in, 
 
 detention of foreign ship, 
 
 emigranl runner's licence, 
 
 passage broker's licence, 
 
 recovery of damage to harbour, 
 
 sale of goods for freight, 
 
 salvage claims, 
 
 seamen's wages, 
 
 Survey Court, 
 
 Board of Trade inquiry, 
 
 inquiry into conduct of ship's officers. 
 
 1367 
 
 1368 
 L362 
 L361 
 1370 
 
 L367 
 1358-1359 
 
 - lini 
 1094-1101 
 
 - 1105 
 
 Messenger at Arms- 
 powers of, - ...-- - 38-47 
 
 Minor— 
 
 as litigant, - ... . 23G 
 
 as executor, • - -1076 
 
 service on, - ------- 
 
 Military Causes 
 
 exclusion of jurisdiction in, 
 jurisdiction over soldiers, 
 
 l 18 
 
 L62 
 
 Medical Referee — 
 
 under Workmen's Compensation Act, 
 
 869 
 
 Memorandum of Agreement ~ 
 
 under Workmen's Compensation Act, 
 
 370876 
 
 Minute of Restriction 
 
 effect of, 
 
 
 Moneylenders' Claims- 
 statutory specialties. 
 
 
 Multiplepoinding"— 
 
 forum, 
 
 competency, - - - - 
 
 what is double distress, 
 
 pursuer and real raiser, 
 
 XoTK. — The Xtunbers refer to PARAQRAPB& not- to 
 
 66 l ; 681 
 
 G76
 
 740 INDEX. 
 
 Multiplepoinding' — continued. 
 
 action by trustees, .... 676-678 
 
 appearance, 
 
 expenses, 
 
 667 
 
 nominal raiser, - - - - 668 
 
 consignation, .... 669 
 
 claims, - 670675 
 
 riding claim, 666; 674 
 
 foreigner claimant, - 666 
 
 reporter. . . - - 6(9 
 
 667 
 
 diligence, _..-_. - 671 
 
 effect of decree, - - - - - 680 
 
 Small Debt Court, - - 1128 
 
 Municipal Administration— 
 
 creation of burgh, - - - 1374 
 
 revision of boundaries, - - - 1375 
 
 wards, - - - 1376 
 
 councillors, - - - - 1378 
 
 election petition, - - - - 1379-1381 
 
 resolution disqualifying councillor, - 1382 
 
 acquisition of land, - 1377 
 
 challenge of accounts, - 1383 
 
 bye-laws, - - 1384-1386 
 
 dairymen, - - - - 1395 
 
 dangerous buildings, - - - 1391 
 
 ruinous property, 1392-1394 
 
 street register, - 1397-1400 
 
 recovery of rates, - 1388-1390 
 
 valuation assessment, - - 1387 
 
 appeals, - 1401-1405 
 
 Nautical Assessor- 
 qualification, - - ■ 484 
 
 payment of, ... 483 
 
 Nobile Officium, 17 
 
 Nominal Raiser— 
 
 in multiplepoinding action, 668 
 
 Xute. — TIu Numbers refer to Paragraphs not to Pa</< s.
 
 INDEX. 741 
 
 Notes of Evidence 
 record of, 
 cosl of, 
 correction of, 
 
 Notice of Appearance— 
 effeol of, 
 
 Nuisances— 
 
 removal of, L413 L421 
 
 appeal, 1117-1418 
 
 Oath 
 
 form of. - -496 
 
 reference bo, .... 5v 0-580 
 
 Ob Conting-entiam— 
 
 conjunction of actions, - - - '-■* 
 
 Offensive Trades— 
 
 proceedings to stop, - - - L422-1423 
 
 Ope exceptionis — 
 
 challenge of deeds or -writings, 
 
 Ordinary Action— 
 
 meaning of. 
 
 Outlaw, 
 
 
 •_'7 1 
 
 223 
 
 Partnership- 
 determination of, L407-1408 
 
 Party in the Cause- 
 meaning of. 
 
 Passage Broker- 
 licensing of, 
 
 tfoTB.—The Number* refer to Pabaoraphs not (o /'■<:/■ 
 
 314 
 
 1361
 
 742 INDEX. 
 
 Person 
 
 meaning of, - ----- 310 
 
 Pilotage Act- 
 appeals, - - 1371-1372 
 assessor, - - - - - - xon 
 
 Place of Business- 
 meaning of, -------- 261 
 
 Pleas in Law- 
 necessity for. - ------ 42o 
 
 preliminary. - ----- 437; 447 
 
 dilatory, - ... 438 
 
 averments to support, - - - 439 
 
 relevancy, - - 441-444 
 
 incompetency, -------- 440 
 
 Pleadings— 
 
 oral, - - - . . - - 391 
 
 written, ------- 392 
 
 revisal of, -------- 410 
 
 Poinding: of Ground- 
 action of, - - 1212-1213 
 
 Poinding*— 
 
 when competent diligence, - - 682 
 
 execution of, - - 684 
 
 conjoining creditors, ------- 688 
 
 interruption of, - 685-687 
 
 interference, -------- 693 
 
 subjects of, -------- 683 
 
 goods of third party, ------- 692 
 
 . sale, - . . . . 690-694 
 
 report of sale, 689-690 
 
 Poor Roll- 
 certificate of poverty, ------ 1153-1157 
 
 agents, - - - - - - 1158-1163 
 
 dues of Court, - - - - - 1162 
 
 probabilis causa Court, - - - - 1164 
 
 Note. — 2 he Numbers refer to Paragraphs not to Pages.
 
 INDEX. 7!:; 
 
 Poor Law Administration 
 
 election petition, ----.... i ma 
 relief order, - . L410 
 
 removal of pauper, - - - . . -1111 
 
 Postal Charge 
 
 w hen competent, - goo 
 
 Postal Citation 
 
 requisites of, - 
 
 by law agent, - - 338 
 
 addressee, - .... qqa 
 
 returned " refused," ... 34] 
 
 returned '"gone, no addres - 340 
 
 Poverty— 
 
 certificate of, - - . . . -1154 
 
 Precept of Arrestment— - . 633 
 
 Precognition— 
 
 purpose of, - ---._. 493 
 
 as evidence, - - - -4 9 4 
 
 Preliminary Pleas- 
 
 meaning of, . 433 
 
 disposal of, - - - - . . -437 
 
 reservation of, - ... 447 
 
 Prescription 
 
 <>t' arrestment, ----.-.. 539 
 
 of small debt arrestment, - - - 639 
 
 Presumption of Life Limitation Act— 
 
 proceedings under - 1082-1088 
 
 Probation— 
 
 renouncing of, - 
 
 Process 
 
 custody of, - 
 
 lost number, - •;<>- - 7 
 
 borrowing, - - - - g - 1 
 
 penalty for non return, 
 caption, 
 
 wakening, - - - 594 
 
 N"otb. -Thi Number* refer to Paragraphs
 
 741- INDEX. 
 
 Procedure Rules 
 
 enactment of. ... 1165-1172 
 
 effect of, 1165 
 
 Procurator Fiscal, 31 
 Productions 
 
 lodging, - - - - - 411 
 
 recovery before record closed. - 412-414 
 
 in jury trial, - 839 
 
 Proof 
 
 renouncing probation, 479 
 
 order for, - - -475 
 
 restriction of, 448 : 477 
 
 before answer, 146 ; 449 
 
 on commission, - - 531 
 
 citation of witnesses, - 497-502 
 
 witness abroad, - - 534 
 
 in British dominions, - 536 
 
 cross-examination, - . - 554 
 
 re-examination, 555 
 
 in replication, 556 
 
 close of, - 561 
 
 reopening, 
 
 562 
 
 appeal during proof, - 557-560 
 
 notes of evidence, - 565-567 
 
 Prorogation— 
 
 of jurisdiction, 220-221 
 
 of statutory rules, - - 611-612 
 
 Protection Order- 
 granting of, 1325-1326 
 recall of, - - 1327 
 
 Protestation- 
 meaning of, - 384 
 
 when granted, 378-379 
 
 effect of. - - 384 
 
 in workmen's compensation case. - - - 362 
 
 Proving- the Tenor 
 
 action of, - - - 1214 
 Note. — The Numbers refer to Paragraphs not to Pages.
 
 [NDEX. 
 
 Public Bodies 
 
 instance of actions. 
 protection of, 
 i spenses, 
 
 boundary ditches, - 
 common lodging-houses, 
 compulsory burial, 
 
 unsound food, 
 
 Public Inquiries 
 
 fatal accidents. 
 
 ] 106 
 1 106 
 
 
 Public Health Acts 
 pi ocedure under, 
 
 appeal against orders of local authority, 1424-1426 
 
 proceedings against local authority, 
 notice. 
 
 1 136 
 1419 
 
 l 133 
 1 131 
 
 infectious disease, 
 
 1413-1421 
 nuisances, 
 
 i 1 122 1 L23 
 
 offensive trades, - 
 
 I I -J7 
 
 I 134 
 
 1 135 
 
 sewer construction, 
 use of sewers, 
 compulsory drainage, 
 underground dwellings, - 
 
 1429 
 
 1089-1093 
 
 Board of Trade. - - l^" 1098 
 
 Pupil 
 
 as litigant, 
 
 Pursuer 
 
 definition of, 
 
 special character, 
 joint pursuers, 
 bankrupt, 
 vexatious litigant, 
 
 Railways— 
 
 valuation of, 
 accommodation works 
 level crossing, 
 
 Ratione Contractus- 
 jurisdiction, - 
 
 XuiE.—Th. Numbers refer to Parasrapbs not f ,> 
 
 235 
 
 311 
 3-21 
 311 
 226 
 264 
 
 l 142 
 1410 
 I 139 
 
 2 1 6 2 1 3
 
 746 INDEX. 
 
 Ratione rei sitae 
 
 jurisdiction, - 208-218 
 
 Real Raiser— 
 
 in multiplepoinding action, - - 665 
 
 Recall— 
 
 of arrestment . - 641 ; 1127 
 
 of bankruptcy, 916 
 
 Reconvention- 
 
 jurisdiction, 200-203 
 
 as between sheriffdoms, - - - 202 
 
 Record- 
 
 closing of, - - - - - ^-• > 
 
 certified copy, 
 
 - 427 
 amendment, - - - - - - - -317 
 
 Recovery of Documents— 
 
 before record closed, ------- 505 
 
 after record closed, ------- 506 
 
 Reduction- 
 incompetent in Sheriff Court, - 94 
 exceptions, -------- 98 
 
 ope exceptionis, -------- -)& 
 
 Reference - 
 
 judicial. 
 
 45G-459 
 
 Reference to Oath — 
 
 procedure, 570-580 
 
 Register— 
 
 of hornings, - D ■ 
 
 of inhibitions, '^" 
 
 workmen's compensation. - °87 
 
 Registered Letter- 
 citation by, - - - 329-332 
 charge by, - - " 6^2 
 XoTE.—7/ie Numbers refer to Paragraphs not to Pages.
 
 INDEX. 7f7 
 
 Registration of Births, Marriages, and Deaths 
 
 procedure, - L24E 
 
 registration districts, 1247 
 
 appointment of regisn - 1246 
 
 custody of hooks, - - 1 2 16 
 
 correction ol entries, - 1251 L253 
 
 old registers, - 1 25 1 
 
 Legitimation entry. - - 1 255 
 
 decree of paternity entry, - - - 1256 
 
 irregular marriage registration, - 1257 
 
 Registration 
 
 decree of, - 61 9 
 
 Relevancy- 
 effect of plea, - - - - -445 
 
 Relief 
 
 action of, - - - - 1215 
 
 poor law order of, - 
 
 Remit— 
 
 to man of skill, 
 
 159 
 
 to another sheriffdom. 
 
 1 19 155 
 
 to small debt roll, - 
 
 168-473 
 
 from small debt roll, 
 
 - 4lV< : 1119 
 
 Removal to Court of Session 
 
 
 consistorial causes. 
 
 153 
 
 heritable actions, - 
 
 - no 
 
 for jury trial. 
 
 752 
 
 Removing" — 
 
 
 purpose of process. 
 
 . 
 
 when action unnecessary, 
 
 . 1003 
 
 probative lease, 
 
 - I 
 
 no lease. 
 
 . 1008 
 
 letter of removal. 
 
 . 1006 
 
 notice. 
 
 988-1009 
 
 caution, 
 
 - 1 1 1 1 ;> 
 
 declarator of irritancy. - 
 
 1015 l"l> 
 
 irritancy of feu, 
 
 1013 101 l 
 
 irritancy of lease, - 
 
 101 1 1019 
 
 occupier without title. 
 
 - 1027 
 
 NoTB.—The Numbers refer t<> Paragraphs 
 
 '••■-.
 
 74s INDEX. 
 
 Removing" — continued. 
 
 under Agricultural Holdings Act. - - 995-1006 
 
 under House Letting Act, - - - 990 
 
 summary, - ..... 1020-102G 
 
 Renouncing- Probation 
 
 form of. - - 479 
 
 Rent 
 
 Set Sequestration for Rent. 
 
 Replication- 
 proof in, ... 556 
 
 Reponing* — 
 
 meaning of, - ... 366 
 
 form of, ... 370 
 
 effect of, - 372 
 
 when barred, - 373-375 
 
 explanation of failure to appear, - - 371 
 
 refusal to repone, - - 369 
 
 consignation condition, - - 368 
 
 indirect, - - - 367 
 
 in workmen's compensation cause, 863 
 
 Report— 
 
 of arrestment, - - 638 
 
 of sale under poinding, - - - 689 
 
 of sale in sequestration, - 1038 
 
 Reporter- 
 remit to, - - 460-464 
 payment of, - .... - 464 
 
 Residence- 
 constituting jurisdiction, - 158-162 
 
 Revisal— 
 
 when allowed, - - 410 
 
 Riding" Claim- 
 in multiplepoinding process, - - 666 ; 674 
 
 Note. The Numbers refer to Paragraphs not to Pages.
 
 |\hlv\. 749 
 
 Roads and Bridges 
 
 barbed wire fen ■ I I '•"' 
 
 bye laws, - 1448 
 
 exl i aordinarp traffic, - ' 1 ' ' 
 
 joint bridge committee, - - 111'. 
 
 Ruinous Property 
 
 in burgh, 1392 1394 
 
 Sale and Division 
 
 action of, - 1191-1192 
 
 sale of cargo for freight. 
 
 Seamen's Wages 
 recovery of. 
 
 1369 
 
 Salvage Claims 
 
 recovery of, - 1:;,; " 
 
 apportionment oi salvage, - 1365 
 
 Seafaring' Men 
 
 jurisdiction over, - - - -162 
 
 1358-1359 
 
 Second Diligence 
 
 when competent, - ... . 
 
 Separation and Aliment- 
 action of, - -1216 1225 
 arrestment on dependence, - 1223 
 interim aliment. - - - 1222 
 removal to Court of Session, - - - •■• ■• 
 
 Sequestration for Rent 
 
 purpose, - 1028 
 
 action in security, - 1031-1 
 
 first deliverance, 
 
 warrant to carry Lack. 1035 
 
 warrant to sell, - - 1,,: '' 7 l038 
 
 report of sale, 
 
 intervention of third party, - 
 
 special register, - - - 
 
 1. reach of sequestration. 
 Small Debt Court, 
 
 Note. The N
 
 750 INDEX. 
 
 Service- 
 acceptance of, ----- - 328 
 
 remedy of defect in, - - - 3 18 
 in consistorial cause, ------- 34o 
 
 in Small Debt action. - - 342 
 
 postal, - 329-332 
 
 personal, - 219; 329; 342 
 
 Service of Heirs- 
 jurisdiction, - 1043-1015 
 forum, - 1018-1050 
 form of action, - 1046-1017 
 removal to Court of Session, - 1054 
 objector, ... - 1055 
 competing applications, - 1052 
 publication, - - - 1051 
 completion of title, - - 1058 
 extract, - - 1056 
 reduction of decree, - - - 1057 
 appeal, - - ----- 1053 
 
 Sett and Sale- 
 action of, - - - 1226-1227 
 
 Sheriff Court- 
 origin of, . . - - 1-3 
 jurisdiction of, - - - 70-148 
 
 Sheriff- 
 origin of office, - - - 
 
 qualification, - - " 
 
 Sheriff-Depute— 
 
 origin of term, ----- 5 
 
 Sheriff of Chancery- 
 office of, - 11 
 
 Sheriff-Substitute— 
 
 origin of office, - - 15 
 
 qualification, - - - - 19 
 
 honorary Sheriff-Substitute. 20 
 
 25 
 
 ■11 
 
 Sheriff-Clerk 
 
 office of, 
 
 depute, 
 
 duties under Workmen's Compensation Act, 885-887 
 
 Note.— The Numbers refer to Paragraphs not to Pages.
 
 INDIA 751 
 
 Sheriff-Officer 
 
 appointment of, 
 removal of, - 
 fees of, 
 
 recall of, 
 
 appeal, 
 
 Small Debt Court, 
 
 Site Value 
 appeal, 
 
 Small Debt Court- 
 jurisdiction, - 
 competent actions, 
 summons, 
 procedure, 
 arrestment, - 
 citation, 
 
 citation of witnesses, 
 claim exceeding £20, 
 counter claim, 
 defence ope exoeptionis, 
 
 
 Ship 
 
 detention of foreign Bhip, 
 harbour damage, - 
 sale of cargo foi freight, 
 
 seamen's wages, recovery of , - - 135S 1359 
 
 Survey Court, ' ' '" l 
 
 aalvage, - 1363-1367 
 
 inquiry into officer's conduct, - - jj"^ 
 
 Hoard of Trade inquiry, 
 
 lu'.H-llul 
 
 Shorthand Writer 
 
 liability for fees of, - - 566 
 
 " r 7 
 correction of notes of evidence, - - - u0 ' 
 
 Sist 
 
 competency of. " 4 "° 
 
 467 
 466 
 1133-1134 
 
 1295 L297 
 
 Skilled Witnesses 
 
 fees of, 
 
 • ^11 
 
 certification ot. 
 
 BIO 
 
 - 1110 
 - 1106-1118 
 
 - 1 1 9 1 
 
 - lilt 
 
 - 1127 
 -111 -J : 1126 
 
 - 11 11 
 . 1108 1109 
 
 - 1141 
 1140 
 
 appearance, [t) ^^ 
 
 law agents, 
 
 Von.- Th Number* refer to PA*A9MAPm
 
 ;:> 2 
 
 INDEX. 
 
 Small Debt Court -continued. 
 removal to Ordinary Court, 
 action against firm, 
 action involving accounting, 
 action of delivery, 
 sequestration for rent, 
 ejection of tenant. 
 judgment, - - 
 
 sist, - - - - 
 
 diligence, 
 postal charge, 
 appeal, 
 Employers and Workmen Act, 1875, 
 
 •168-473; 1119 
 
 1111 
 
 1120 
 
 1121-1123 
 
 1130-1131 
 
 - 1132 
 1136-1139 
 1133-1134 
 1145-1146 
 
 - 622 
 1147-1148 
 1149-1150 
 
 Specification of Documents 
 competency, - 
 
 514-517 
 
 Stated Case 
 appeal by. 
 
 772-777 
 
 Statement of Facts— 
 separate by defender 
 answers by pursuer, 
 for counter claim, - 
 
 400 
 400 
 397 
 
 Statutory Appeals- 
 reservation of in Sheriff Courts Acts, 
 
 760 
 
 Status 
 
 
 
 action to determine, 
 
 90 
 
 Street Register 
 
 
 
 appeal, 
 
 - 
 
 1397-1400 
 
 Summary Cause 
 
 
 
 meaning of, - 
 
 - 
 
 275-284 
 
 difference from 
 
 ordinary action, 
 
 - 293 
 
 of consent, 
 
 . 
 
 - 394 
 
 at any stage. 
 
 . 
 
 288-289 
 
 procedure, 
 
 . 
 
 294; 393 
 
 conjunction , 
 
 . 
 
 - 292 
 
 value, - 
 
 . 
 
 - 285 
 
 counter claim. 
 
 
 290-291 
 
 appeal, 
 
 - 
 
 738-746 
 
 Note. — The 
 
 Numbers refer to Paragraphs not to Page 
 
 s.
 
 INDIA 
 
 Summary Application 
 meaning of, - 
 jui isdid ion, 
 form of action, 
 procedure, 
 judgment, 
 appeal, 
 
 Summary Removing 
 
 procedure in, I 020 1026 
 
 Survey Court 
 
 under Merchant Shipping Act, ll'»l 
 
 Suspension— 
 
 competency, - - 113-1 15 
 
 procedure, - - ' ' 6 
 
 appeal, - 121 
 
 workmen's compensation cause, - 87« v 3' ' 
 
 Tabling- 
 
 duty of, 
 
 enrolment for, - 
 
 summary cause, ------ 
 
 Taxation— 
 
 of expenses, - - -792 
 
 Teinds 
 
 allocation of fish teinds, 1298 1301 
 
 Tender 
 
 nature of. ! [ <] r> 
 
 essentials of, 
 effect of, - 
 
 Telegraph Acts 
 
 Bettlemenl of disputes under, ' ' " 
 
 Testamentary Trustee 
 
 removal of, 17 - 
 
 Trade Union 
 
 procedure under statutes. 
 
 expenses in actions. 
 
 Non. Flu Numbers refer to Pabaqbaphs i 
 18 
 
 t 151
 
 754 INDEX. 
 
 Transfer— 
 
 of action to another Sheriff Court, 
 plea of no jurisdiction, - 
 
 Trusts ActS- 
 jurisdiction, 
 actions under, 
 removal of trustee, 
 
 Tutors and Curators- 
 service on, - 
 
 Tutor ad litem— 
 
 when necessary, - 
 
 Undefended Cause- 
 decree in, 
 
 Value- 
 determining appeal rights, 
 
 Verdict— 
 
 in jury trial, - 
 applying, 
 
 Vexatious Litigant- 
 may be debarred from suing, 
 
 Violent Profits - 
 
 caution for, - 
 
 149-155 
 
 - 
 
 310 
 
 
 1452 
 
 - 
 
 1453 
 
 146 
 
 ; 172 
 
 239 
 
 235 
 
 352 
 
 Unsound Food— 
 
 order for destruction of, - 
 
 711-718 
 
 840 
 841 
 
 264 
 
 1019 
 
 Voluntary Association— 
 
 instance of action, - «** 
 
 diligence against. 
 
 Wages— 
 
 arrestment of, 
 
 Note.— The Numbers refer to Paragraphs not to Pages. 
 
 259 
 
 646
 
 [NDEX. 755 
 
 Wakening-— 
 
 procedure, - ... 59 1 
 
 jury cause - ... - - 
 
 Warrant of Citation— 
 
 i'ditn of, - " •'-•' 
 
 on i 
 
 signature of. - - 0Zi 
 
 endorsation of, - - - 37; 346; 498 
 
 ition of. ...-- ■>< 
 
 Warrant- 
 to carry back in sequestration for rent, - - 1035-1036 
 to sell in sequestration for rent, - - 1037-1038 
 
 Witnesses— 
 
 competent, - - • ^90 
 
 disability, • - - "*91 
 
 payment of, - - "03 
 
 travelling expenses tender, - - 499 
 
 citation of. - 497-502 
 
 failure to obey citation, - - - 499 
 
 remote from seat of Court, - - 531 
 
 examination of, - - 538-553 
 
 cross-examination. ... - - ool 
 re-examination, - 
 leading questions, 
 confidentiality plea, 
 
 children, - *■ - 
 
 hostile, 55 ° 
 
 skilled, - - - - 6*1-548; 810 
 
 fees of witness not examined, - 809 
 
 precognition, - ■ 49.5-4. 1 
 
 Workmen's Compensation Causes— 
 
 jurisdiction, 
 
 procedure, - 
 
 assessor, ------ 
 
 evidence, 
 
 judgment, 
 
 Rfi2 
 decree in absence. 
 
 decree by default , 
 
 reponine, - 
 
 ... 
 expenses, 
 
 IfoTB.— The Numbers refer to Paragraphs not I
 
 756 INDEX. 
 
 Workmen's Compensation Causes — continued. 
 
 Sheriff-Clerk's powers and duties, - - 885-887 
 
 award in ordinary action, 902-903 
 
 apportionment of award, - 906 
 
 medical referee, - - 869 
 
 appeal from certifying surgeon, - - - 888 
 
 memorandum of agreement, - 870-876 
 
 fraudulent agreement, - - - - 889-890 
 
 review of weekly payment, - 891-893 
 maritime causes, - .... 900 
 
 appeal, - - - 894-897 
 suspension, - -.-.... 898 
 
 Writ or Oath- 
 proof by, .--.- . 448 
 
 Note. — The Numbers refer to Paragraphs not to Pages.
 
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