How Arrestment may be loosed. When any arrestment shall have been used on the dependence of any action, it shall be competent to the defender to have such arrestment loosed, on lodging with the sheriff clerk of the county a bond or enactment of caution by one or more good and sufficient cautioners, agreeably to the form in Schedule (B), or on consigning in the hands of such sheriff clerk the amount of the debt or demand and a reasonable sum for expences, or on producing to such sheriff clerk evidence of the defender having obtained decree of absolvitor in the action, or of his having paid the sums decerned for, or of his having consigned in the hands of the clerk of the court the sums decerned for, or the amount of the debt or demand and a reasonable sum for expences, when no decree has yet been pronounced. And a certificate by the sheriff clerk of the county in which such arrestment shall have been used, of a bond or enactment of caution having been lodged with him, or of consignation as above provided having been made in his hands, shall be a sufficient authority for obtaining a warrant for loosing any other arrestment used on the dependence of the same action, without any other caution being found, or any other consignation being made by the defender. § 5. Rendering Arrestments effectual.-Any person entitled to pursue an action of forthcoming, where the sum or demand shall not exceed one hundred pounds Scots, exclusive of expences and fees of extract, who shall choose to have the same heard and determined according to the summary mode provided by this act, shall proceed by summons or complaint agreeably to the form in Schedule (C), concluding for payment of the sum for which arrestment has been used, or for delivery of the goods and effects arrested, which summons being signed by the sheriff clerk of the county in which the arrestee resides, shall be a sufficient warrant to any sheriff's officer for summoning the arrestee and the common debtor to appear and answer at a sheriff court of the county in which the arrestee resides, the same not being sooner than the sixth day after the date of citation, and also for summoning witnesses and havers for all parties; and in the event of the common debtor not residing and not being found within the county in which such action of forthcoming shall be brought, he may be cited in any other county on the said warrant, the same being first indorsed by the sheriff clerk of such other county, on payment of the fee hereinafter mentioned, to appear at a sheriff court in the county in which the arrestee resides, the same not being sooner than on the twelfth day after the date of citation: Provided, that the arrestee and the common debtor shall be cited to appear on the same court day, and that a copy of the summons, with the citation annexed thereto, shall be served by the sheriff's officer on every defender personally, or at his dwelling place, all in the same manner and under the like conditions as to citation as herein before provided in other causes and prosecutions, but always allowing to a party cited to appear in the sheriff court of a different county from that in which the citation shall be given double the time required to be allowed to a party cited to appear in the sheriff court of the county within which the citation shall be given. § 6. Witnesses to attend-Every officer of court to whom any warrant for citing witnesses and havers shall be entrusted, shall cite such witnesses or havers; and all such warrants shall have the same force and effect in any other county as in the county where they are originally issued, the same being first indorsed by the sheriff clerk of such other county; and if any witness or haver, duly cited, shall fail to appear, it shall be competent to any party for whom such witness or haver is summoned, to apply for a new warrant; which warrant shall require him to attend to give evidence, under a penalty not exceeding forty shillings, unless a reasonable excuse be offered and sustained; and every such penalty shall be paid to the party applying for the new warrant, and shall be recovered in the same manner as other penalties under this act, without prejudice always to letters of second diligence, for compelling witnesses and havers to attend as at present competent; and it shall be no objection to any witness, that such witness has appeared without citation, or without having been regularly cited. § 7. Hearing and Judgment.-When the parties shall appear, the sheriff shall hear them vivá voce, and examine witnesses or havers upon oath, and may also examine the parties upon oath, and may pronounce judgment; and the decree stating the amount of the expences, if any, found due to any party (which may include personal charges, if the sheriff think fit), and containing warrant for arrestment, and for poinding and imprisonment, shall be annexed to the summons, and on the same paper with it, agreeably to the form in Schedule (A), which decree and warrant, being signed by the clerk, shall be a sufficient authority for instant arrestment, and also for poinding and sale, and imprisonment, six free days from the date of the decree, if the party against whom it shall have been given was personally present; but if he was not so present, poinding and sale, and imprisonment, shall only proceed after a charge of six free days, by serving a copy of the complaint and decree on the party personally or at his dwelling place; and if any decree shall not be enforced by poinding or imprisonment within a year from the date thereof, or from a charge for payment given thereon, such decree shall not be enforced without a new charge duly given. § 8. Procurators &c. not to plead without leave of Court.-No procurators, solicitors, nor any persons practising the law, shall be allowed to appear or plead without leave of the court; nor shall any of the pleadings, arguments, minutes, or evidence be reduced to writing, or be entered upon any record, unless with leave of the court: provided, that when the sheriff shall order any pleadings, arguments, minutes, or evidence to be reduced to writing, every case in which such order shall be made shall thenceforth be conducted according to the ordinary forms and proceedings in civil causes and in prosecutions for statutory penalties, and shall be disposed of in all respects as if this act had not been passed. § 9. Non-appearance of Parties.-Any defender who has been duly P 1 cited, failing to appear personally or by one of his family, or by such person as the sheriff shall allow, shall be held confessed, and the other party shall obtain decree against him; and in like manner, if the pursuer or prosecutor shall fail to appear personally, the defender shall obtain decree of absolvitor, unless in either case a sufficient excuse for delay shall be stated; on which account, or on account of the absence of witnesses, or any other good reason, it shall at all times be competent for the sheriff to adjourn any case to the next or any other court day. § 10% Re-hearing of Cause.-Where a decree has been pronounced in absence of a defender, it shall be competent for him, upon consigning the sum decerned for in the hands of the clerk, at any time before the days of the charge shall elapse, to obtain from the clerk a warrant, sisting execution till the next court day, or to any subsequent court day to which the same may be adjourned, and containing authority for citing the other party, and witnesses and havers for both parties; and the clerk shall be bound to certify to the sheriff on the next court day every such application for re-hearing and sist granted; and such warraut being duly served upon the other party, in the manner provided in other cases by this act, shall be an authority for re-hearing the cause. And in like manner, where absolvitor has passed in absence of the pursuer or prosecutor, it shall be competent for him, at any time within one calendar month thereafter, upon consigning in the hands of the clerk the sum awarded by the sheriff in his decree of absolvitor as the expences for the defender and his witnesses, to obtain a warrant, signed by the clerk, for citing the defender and witnesses for both parties, which warrant, being duly served in the manner provided in other cases by this act, shall be an authority for re-hearing the cause; the said sum of expences, awarded by the sheriff and consigned as aforesaid, being in every case paid over to the defender, unless the contrary be specially ordered by the court; and all such warrants for re-hearing may be served by an officer of the county where they are issued, in any other county, without indorsation. 11. Books of Causes to be kept.-The sheriff clerk shall keep a book, wherein shall be entered all causes conducted under this act, setting forth the names and designations of the parties, and whether present or absent at the calling of the cause, the nature and amount of the claim, and date of giving it in, the mode of citation, the several deliverances or interlocutors, and the final decree, with the date thereof; which book shall be signed each court day by the sheriff, and the said entries by the clerk shall be according to the form in Schedule (D), or with such addition as the sheriff shall appoint; and the sheriff clerk shall also keep a book, containing a register of all indorsations of decrees and warrants issued in other counties, and of all warrants for arrestment on the dependence, and of all loosings of arrestment, and of all reports of poindings, and sales of goods and effects arrested; which registers shall be openand patent, at office hours, to all concerned, on payment of the fee hereinafter mentioned. § 12. Payments may be made by Instalments.-The sheriff may direct the sum found due, to be paid by instalments weekly, monthly, or quarterly, according to the circumstances of the party found liable, and under such conditions or qualifications as he shall think fit to 'annex. § 13. Decrees may be enforced in any other County.-Any decree obtained under this act may be enforced in any other county, as well as in the county where the decree is issued: provided, that such decree, or an extract thereof, shall be first produced and indorsed by the sheriff clerk of such other county, who is hereby required to make such indorsement, on payment of the fee hereinafter mentioned. § 14. Appraisement and Sale of Effects. The poinding and sale shall be carried into effect by the officer in a summary way, by getting the effects poinded duly appraised by two persons, who may also be witnesses to the poinding, and leaving an inventory thereof for the party whose effects are poinded, and carrying such effects either to the nearest market town or to the nearest village, and selling the same to the highest bidder by public roup, between the hours of eleven forenoon and three afternoon, at the cross or such most public place, on previous notice of at least two hours, by the crier, but reserving to the sheriff, as he shall think fit, to appoint a different hour or place for the sale, or a longer or different kind of notice to be given of the time of selling; and the overplus of the price, after payment of the sums decerned for, and the expences, shall be returned to the owner; or if the effects are not sold, the same shall be delivered over at the appraised value to the creditor, to the amount of the sum decerned for, and expences, and the allowances for poinding and sale; and a report of the poinding and sale and proceeds, or of the delivery of the effects, shall in every case be made by the officer to the sheriff clerk within eight days thereafter, agreeably to the form in Schedule (D), and where the sheriff shall order a sale of goods or effects arrested, the same course of proceeding shall be adopted as is above directed in the case of poinding and sale; and no officer to whom the enforcement of decrees or warrants in cases falling under this act may be committed, shall be liable to any penalty, fine, or punishment, for selling goods.or effects under authority of such decrees or warrants by public auction. § 15. Certain Actions may be brought under this Act.—All actions of damages for compensation for loss or injury by the acts of any unlawful, riotous, or tumultuous assembly in Scotland, or of any person engaged in, or making part thereof, brought under the act of the 3 Geo. IV. c. 33. where the sum concluded for does not exceed one hundred pounds Scots; as also all actions for recovery of assessments by the 9 Geo. IV. c. 39. intituled An Act for the preservation of the salmon fisheries in Scotland, may be heard and determined in the summary way by this act, and this notwithstanding the amount of such assessments shall exceed one hundred pounds Scots. § 16. At all times when the sheriff of any shire shall judge it expedient to hold courts for the purposes of this act, whether in time of session or of vacation, at any other than the usual place for holding the same, or shall be directed so to do by his majesty's warrant, the sheriff clerk is required to attend at such times and places, and to find the necessary accommodation for holding such courts, all on his own charges and expences, in respect of the fees allowed by this act. § 17. Appeals. No decree given by any sheriff in any cause or prosecution, where the sheriff shall not have ordered any pleadings, arguments, minutes, or evidence to be reduced to writing, shall be subject to advocation, suspension, or appeal, or any other form of review or stay of execution, other than hereinbefore provided, either on the merits or on account of any omission in the proceedings, or of any irregularity or informality, or on any ground or reason whatever, excepting only an appeal on the ground of corruption or malice and oppression on the part of the sheriff, to the next Circuit Court of Justiciary, or where there are no circuit courts, to the High Court of Justiciary at Edinburgh. § 18. -- Fees. The following and no other or higher fees shall be allowed to be taken :~ Summons CLERK'S FEes. Entering in Procedure Book Each Copy for Service Warrant to cite de novo, and Re-entering Warrant to arrest on dependence, and Entering in Book Loosing Arrestment Bond of Caution For every Oath of Party Decree 0 10 0 Rehearing 0 1 6 Indorsation of Decree or Warrant, and Entering in Book 1 1 0 6 OFFICERS' FEES, INCLUDING Assistants'. Second Diligence for compelling Witnesses or Havers to attend First Citation of a Party, and Execution, if Citation given personally 0 Charging on Decree, and returning Execution of Charge Intimation of loosing Arrestment, and Execution thereof 1000000223 Officer's Travelling Expences, for each complete Mile from the Court House or the Residence of the Officer employed (the distance travelled in returning after execution of the duty not to be reckoned) 0 *Assistants, each, per mile, in the same manner 0 05 0 4 For calling each Cause CRIER'S FEE. 0 0 1 |