for delay be stated, when proceedings may be adjourned (§ 15). The parties are heard and examined verbally, and no law-agents are permitted to act for them, nor can any of the proceedings be committed to writing without leave from the Sheriff on special cause shown (§ 14). When a defender is decerned against in absence, he may re-open the question by lodging the expense incurred and 10s. at any time before a charge on the decree, or within three months after a charge if it has not been enforced. Where the pursuer has decree of absolvitor passed against him in absence, it may be re-opened by his paying 5s. with expenses. The expenses in either case go to the opposite party, unless otherwise specially disposed of by the court (§ 16). The Sheriff may direct sums decerned for to be paid by weekly, monthly, or quarterly instalments (§ 18). The decrees of Sheriffs may be enforced by endorsement beyond their jurisdictions (§ 19). The Sheriff may enforce his decision by poinding, and if access be denied, he may grant warrant of open doors. Each Sheriff must hold circuit courts at certain places mentioned in schedule H. of the act, so often in each place as he is directed by warrant under the sign-manual published in the London Gazette (§ 23). Each sheriff-clerk must attend the circuits or appoint a depute, and there must be a resident depute for each circuit court to issue summonses, the name and residence of such depute being advertised on the door of the parish church ($25). A description of the space allotted to the jurisdiction of each circuit court must be posted up in every court-room of each county (§ 26). The act appoints a table of fees, of which a copy must be printed on each summons, and on each service copy, and be hung up in each sheriff-clerk's office, and in every court-room during the holding of a small debt court, under a penalty not exceeding 40s. (§ 33). There can be no review of the Sheriff's decisions except on the ground of corruption, malice, wilful or mischievous deviation from form, or the incompetency of the procedure. The appeal lies to the circuit court, or where there is no circuit to the high court of justiciary (§31). It was found that an appeal on want of jurisdiction, from the defender not being within the county of the Sheriff adjudicating, should have been to the circuit court, not to the Court of Session.2 Officers not performing their duty as assigned by the act, are liable in a penalty not ex

Scott v. Lethem, 27th June 1844.- Graham v. Mackay, 25th Feb.

ceeding 40s. (§ 34). In the clause of the act allowing prosecutors to recommence procedure only in the small debt court, the words of the act are "when absolvitor has passed." It appears that where parties have not come to issue, that there has been in some counties a practice of "dismissing the action" instead of pronouncing decree of absolviter, and that in such a case the pursuer is not precluded from raising action before another court.1

SECT. 3.-Justice of Peace Courts.

These are regulated by 6th Geo. IV. c. 48. The jurisdiction of the justices is more limited than that of the Sheriff; it only extends to cases where there is a debt or demand not exceeding £5 (§ 2.) It does not extend to questions where heritable right, or wills, or marriage-settlements are involved, or to questions arising out of horseracing or gaming (§ 25). The warrants are issued by the clerk of the peace, or a deputy appointed by him.* It was found that where a party holding a deputation from the town-clerk of a borough was in use to act as clerk to the magistrates when acting in the small debt court, a warrant issued by him was incompetent. Where the defender does not appear on the first court-day to which he is cited, he may, on the authority of a marking on the warrant or an entry in the procedure-book, be cited again, being held to confess the debt if he do not appear on such second citation. If the first citation have been twelve free days from the court-day, the officer, if he have not personally served it on the defender, may cite him a second time to the same courtday; and the defender not appearing in consequence of such double citation is held as confessed (§ 3). Witnesses not attending when cited are liable to forfeit 20s., or be imprisoned for ten days (§4). The decisions of the justices are not subject to Appeal, nor are they subject to Reduction except on the ground of malice and oppression, in which case action must be brought within a year of the date of the decree (§ 14). Two justices must be present to form a judicial quorum, but one justice can pronounce decrees in absence (§§ 2, 16). The procedure in other respects resembles that before the Sheriff. There is a separate table of fees. It was found to be irregular and illegal for the

1

Taylor v. Coulston, 18th February 1840.-* Sect. 3.- Harvey v. Forrest, 25th November 1841.

clerk to give a discount on the regular fees to parties taking out numerous complaints, who, the full fees being indorsed on them, were enabled to receive their amount from the defenders.1

CHAPTER V.

DILIGENCE AGAINST THE PERSON, AND IMPRISONMENT.

SECT. 1.-Preliminary Explanation.

DILIGENCE is a general expression, indicating the means by which the law enforces the obligations of individuals, through indemnity on their property, or the restriction of their liberty. It proceeds either on the decree of a competent court, or on that which the law expressly declares to be equivalent.

con

Clause of Registration. The previous consent of parties assumes the force of a decree when it is in the form of a Clause of Registration in a deed, prepared according to certain forms.* There is a blank left in the deed for the name of a Procurator, who is presumed to appear in court, and 66 sent to the registration" on the part of the person bound. When such a deed is presented at the proper office, it is registered, and an extract is given with the procurator's name filled up, which is of the same service in the hands of the claimant as a decree of the court in his favour.2

Bills and Notes.-It is among the privileges of bills of exchange and promissory notes, when properly made and duly negotiated, that they are in the same situation with deeds having a clause of registration. To give it this privilege the bill or note must be duly protested, and the protest must be recorded within the proper time in the books of some court competent to try an action for payment of the document.+

Inducia.-The nature of the induciæ, an expression it is necessary frequently to employ, may here be explained. The term is applicable to a truce or cessation of hostilities, and expresses the period intervening between the charge and the

1 Lord Advocate v. Douglas, 4th June 1842.-* See above, pp. 133, 337. - E. ii. 5, 54.-+ See above, p. 334.

denunciation according to the old, or between the charge and the time when it must be obeyed to save the party from ulterior proceedings according to the new system. The number of days for clauses of registration, bills of exchange, and decrees of removing by the Sheriff is six, in charges on decrees of the commission of teinds it is ten, in other cases it is fifteen. Where the debtor resides in Orkney and Shetland, however, it is forty (unless he have consented to shorter induciæ), and when he is out of Scotland it is sixty days.1

A considerable alteration has lately been made in the form of diligence. The power of imprisonment has been extended to sheriff courts, and the steps by which it is accomplished in the Court of Session have been considerably abbreviated. As it is still competent, however, to proceed in the old form, though in such case no part of the expense is exigible from the obligant but the expense of extract, unless it be shown that it is incompetent in the circumstances to proceed in the new form,2-a brief detail of the old form is here given.

SECT. 2.-Old Form of Diligence.

The process commences with Letters of Horning, or Letters of Horning and Poinding, which are writs signed by writers to the signet, and stamped with the signet, authorizing messengers-at-arms to charge a party to perform a specified act, under pain of being denounced rebel if he fail to obey, and containing a warrant so to denounce him. When the letters proceed on a decree of the Court of Session, or on a document registered in its books, the extract is in general a sufficient warrant for impressing the signet. When they proceed on the decree of an inferior court, the decree must be produced, and authority to proceed on it granted by bill.3 The letters are executed by a messengerat-arms personally or at the dwelling-house of the party if he be within Scotland, if he be not, a copy is delivered at the Register House.*

An execution is returned by the messenger. At the end of the induciæ, the debtor, if contumacious, may be denounced rebel, or put to the horn, and his moveables may be poinded. According to ancient practice the messenger in denouncing proceeds to the market-cross of Edinburgh, or of the head

Jur. St. iii. 577.-21 & 2 Vict. c. 114, § 8.-3 Jur. St. iii. 576.— 46 Geo. IV. c. 120, § 51.

burgh of the shire, and in presence of two witnesses, pronounces the denunciation, and gives three blasts of a horn. Very little (if any) of this ceremony was in use to be performed for a considerable period before the introduction of the new system, the messenger merely returning an execution, stating that it had been gone through. The denunciation must take place within a year and day of the date of the charge, and the letters of horning and execution must be registered within fifteen days after the date of the denunciation.3 The next step is a warrant to imprison, which is thus obtained: The letters of horning, with the execution, a certificate of their having been duly registered, and a bill praying for letters of caption, are produced at the bill-chamber; and the bill, when passed, is a warrant to the keeper of the signet to stamp a caption or warrant of imprisonment.4

SECT. 3.-New Form.

Superior Courts.-By the new practice, when there is a decree of the Court of Session, or of the Commission of Teinds, or of the Court of Justiciary, or a registered document on which execution may proceed,* an extract may be procured, containing a warrant to charge the debtor or obligant to pay or perform the obligation within the induciæ under pain of poinding and imprisonment. On this warrant a messenger-at-arms charges the party as above, in presence of one witness, and returns an execution signed by himself and the witness.5 On the expiration of the inducia, the messenger may proceed to poind. At any time within year and day after the expiry of the charge, the extract and execution may be recorded in the register of hornings, and it will then have the same effect as recorded charge and denunciation on letters of horning.7

Sheriff Courts.-Extracts of decrees of Sheriffs, or of documents on which execution may proceed registered in the sheriff court books, are to contain warrants in the same terms as the above, and having the same effects. The fees for such extracts are not to be greater than those established for ordinary extracts. The warrant may be executed by a messenger-at-arms or an officer of the court. The extract and execution may be registered by the sheriff-clerk at any

1 Office of a Messenger, 162. Darling on the Powers of Messengers, 15. Jur. St. iii. 737.-Office of a Messenger, 162.-3 Jur. St. iii. 737.Ibid. 740.-* See above, pp. 133, 337, 454.51 & 2 Vict. c. 114, §§ 1, 3. - Ibid. § 4.— Ibid. § 5. Ibid. § 9, & Sch. No. 6.