merchants' accounts, and other the like debts." These are the words of the Act 1579, cap. 83, establishing the triennial prescription,with the important qualification omitted, " that are not founded upon written obligations." The cases therefore that have occurred as to the application of the triennial prescription may be usefully referred to by the practitioner, and the principles which they have established appear to be these:

(1.) House maills and other the like debts are rents of subjects properly urban. Arrears of the rents of farms or a minister's glebe are not included. If the rent sued for is for both house and land, the competency will depend on the question which is accessory to the other.

to

It appears not to be lawful to sequestrate for rents currente termino under this Act. Sec. 5 of the Small Debt Act relates only to the recovery of rents actually due the form of the Summons in Schedule B being-" Whereas E. F., defender, is owing to the pursuer the sum of L. being the rent for premises possessed by him from —, which rent the said defender refuses or delays to pay." By Section 28 of the Act of 1853 this provision is extended "to all sequestrations applied for currente termino or in security." Section 26 of this statute, extending the Small Debt jurisdiction from L.8 6s. 8d. to L.12, is recognized, and Sec. 5 of the Small Debt Act is duly incorporated; but for some inscrutable reason the 28th section of the Act of 1853 has not been incorporated. It follows that under the Debts Recovery Act it is only competent to sequestrate in execution, and when the diligence is to be used in security of rent exceeding L.12, recourse must be had to a summons in the Ordinary Court.

(2.) Men's ordinaries and other the like debts are entertainment furnished by a boarding-house keeper or lodging-house keeper, or aliment due under a contract. A claim of relief by the mother of an illegitimate child against the father, or the claim of recompence competent to a negotiorum gestor in respect of advances made for behoof of a minor, is not included.

(3.) Servants' fees and other the like debts embrace not only the wages of domestic servants, but all payments of the nature of salary or remuneration for services as an apprentice, factor, grieve, chamberlain, or indeed in any situation, even although no express contract of service can be established. But the sum due under a special contract for going to London as a professional witness is not subject to the operation of the statute.

(4.) The expression, "Merchants' compts," has given rise to considerable discussion. The word merchant (the French marchand) — appears to be ancient Scotch for tradesman or shopkeeper. The statute applies to tradesmen's accounts of every description, whether wholesale or retail, whether artificers or shopkeepers-to the accounts of law agents, surgeons and apothecaries, printers, surveyors —a claim by a sub-contractor against a principal contractor for ex

cavation, and by an advocate's clerk against the agent by whom the advocate was instructed. Mr Dickson says that the statute does not apply to the claim for the price under an isolated sale of goods, but the contrary has since been decided by Lord Kinloch (Gobbi v. Lazzaroni, 19th March 1859, 21 D. 801). It does not, however, embrace. claims for repetition of cash advances. Nor does it apply to accounts arising out of the contract of mandate, or negotiorum gestio, or generally, out of any relation of a fiduciary kind. It does not apply to the balance due by the commission agent to his principal, by the consignee to the consignor, by the ships-husband to the ship, or to a claim against a person who has intromitted with one's funds. In all such cases, the right vested in the pursuer is merely the right to call the parties to account, and is quite a different case from a suit for domestic furnishings, which was chiefly in view when the three years' prescription was established. The cases are collected and commented on in Mackinlay v. Mackinlay, 11th Dec. 1851, 14 D. 162. It also follows that under this statute no action can be brought for money paid, where the consideration has failed, e.g., where the contract has been rescinded, or there has been a breach of warranty. There is no room under this Act for actions of damages, on bills, or for recovery of penalties or public rates.

II. Is the Sheriff-Clerk bound to frame the Summons? In many counties, since the Small Debt Act came into operation, it has been the practice for parties with nothing in their hands but the account to be recovered to go to the office of the Sheriff-Clerk, and require him to "give them a complaint for that." The Sheriff-Clerk takes one of the printed forms and fills it up in the manner required, at great personal trouble to himself, and with a certain amount of risk, for he makes himself liable for mistakes in its preparation. This practice, though a very convenient one for the parties, is wholly unwarranted by the statute. Nowhere in either the Small Debt Act or the Debts Recovery Act is it enacted that the Sheriff-Clerk shall do more than sign the Summons after it is presented to him for that purpose, his signature being the officer's warrant for citing the defender. But the party himself suing under these Summary Acts must, like any other litigant, frame his own writ. (See remarks of Sheriff Smith in Dundee Sheriff Court, which are reported on another page.)

III. The first deliverance. After the pleas of parties have been noted, the Sheriff is directed (Sec. 8) to fix a time and place for proceeding to try and determine the cause, " and shall ordain the parties "then to attend, and shall grant warrant to cite witnesses, which war"rant shall be signed by the Sheriff-Clerk, and shall have the same "force and effect as if it had been contained in the Summons and "Complaint." We believe that various rural Sheriffs have been much puzzled to see how they can grant a warrant without signing it, and

how the Sheriff-Clerk can with propriety sign the Sheriff's warrant. We believe, indeed, that in several counties a serious miscarriage has already occurred. In some printed forms which have come under our observation, there is a skeleton interlocutor following the summons, to this effect-"The Sheriff-Substitute appoints the case to be tried and determined on," &c. "ordains the parties

then to attend, grants warrant to cite witnesses and havers, &c." And this interlocutor is signed, not by the Sheriff, but by the Sheriff-Clerk. It should not be necessary to point out that this is a radical nullity, for an interlocutor signed by anybody but the Sheriff is no interlocutor at all.

To understand what was meant to be done, it must be kept in view that the old Small Debt Summons contained a warrant to the officer not only to cite the defender, but also to "cite witnesses and havers for both parties to compear at the said place and date to give evidence in the said matter," and the summons was signed by the Sheriff-clerk. But in the summonses issued under the new Act the words quoted are omitted, and they only become necessary after the parties have appeared and explained the ground of action and the nature of the defence. The Sheriff-substitute having adjusted the issue, his next duty is to fix a time and place for the trial. How is this to be done? Not by any separate and formal interlocutor, but by a marking in the interlocutor column of the Court Book, thus:-"Case to be tried here on Monday, the 10th, at 10 o'clock. The Sheriff's signature at the foot of the page authenticates each entry, and by section 15 this Court Book or Book of Causes, as it is called, is to contain, inter alia, the "several Deliverances or Interlocutors of the Sheriff." This marking in the Book is the Sheriff-clerk's authority for issuing the warrant to cite witnesses and havers. The warrant to cite witnesses, which is to be signed by the Sheriff-clerk, should simply be in the language of the omitted portion of the old Small Debt Summons, thus:

"A. B., Sheriff of the Shire of

of Court, jointly and severally,—

to

Officers

"Whereas the action now before me, raised at the instance of C. D., Pursuer, against E. F., Defender, has been appointed to be tried and determined on Monday next, at 10 o'clock, within the Court House , you are hereby required to cite witnesses and havers for both parties to compear at the said place and date to give evidence in the said matter.

of

"J. P., Sheriff-Clerk.

IV. Counter Claims and Multiplepoindings.-The Small Debt practice as to Counter Claims does not seem competent under this Act. Section 11 of the Act of 1837 allows any counter account or claim to be pleaded against the sum sued for, provided it is served on the pursuer one day before the trial in the form set forth in

Schedule A. But section 11 is not among the sections incorporated by section 5 of the new Act, and therefore the practice just remains as it is at common law, namely, a counter claim can in no case be pleaded, unless it be of such a kind as will found a plea of compensation. This reading is, perhaps, not reconcileable with the painful anxiety exhibited in various parts of the new Act," that the counter claims to be made under the authority of this Act shall only be of the nature and value set forth in the second section hereof;" but this only proves that the framers of the Act really did not very well understand the scope and effect of their measure.

As regards Multiplepoindings, the provisions of the new measure reach the climax of absurdity. It is of the very essence of this process that every creditor of the common debtor should be brought into the field. But observe what the Statute says. While actions of multiplepoinding under the 10th section of the Small Debt Act are made competent to the extent of £50, it is expressly provided "that the counter claims or claims in such actions shall be of the nature and value set forth in the 2d section hereof,"-i.e., "housemaills, men's ordinaries, servants' fees, merchants' accounts, and other the like debts." The intention, no doubt, is (although it is not very clear from the absolute incorporation of the 10th section of the Small Debt Act) to make the multiplepoinding competent only where the fund in medio belongs to the class of debts specified, but it is most absurd, and practically will amount to a denial of justice, to exclude all claims in the multiplepoinding, except those of the nature of the debts specified in the Act. The favoured creditors under the Act will receive an undue preference over those whose claims do not fall under the specification. What can be more unreasonable and unjust than to say, for example, that a person holding a bill, or other liquid document of debt, should be in a worse position than the merchant who simply makes out his account, or probably presents a "pass-book." The only remedy is for the Sheriff to exercise the power with which he seems to be vested, of sending a mutiplepoinding, at any stage, to the Ordinary Roll.

V. Procedure where the Defence raises an Issue of Law. This is a very important matter, because it deeply affects a question which is much agitated, and is felt to be one of extreme difficulty, namely, whether there is an appeal on law?

Let us suppose the simplest case. At the first calling, the Sheriff's Note of Pleas is :- The defender says, that on the facts stated in the summons he is not liable." The Sheriff is then bound to fix a time and place for the trial of this question. On the day appointed the Statute says, (sect. 8,) "he shall proceed to hear parties vivâ voce, and examine witnesses or havers on oath," that is to say, he may do so if any witnesses are tendered, but where no evidence is offered, and probably also when a minute of admissions is put in,— his sole duty is to hear the parties viva voce, and thereafter pro

nounce judgment. This judgment, unless appealed from, is to be (sect. 8) as nearly as may be in the same form as a decree under the 13th section of the Small Debt Act, that is to say, there is a mere entry in the interlocutor column of the Court Book, which may, if desired, be afterwards followed by a decree signed by the Sheriff-clerk, containing nothing but a simple finding to the effect, that "the defender is liable in a certain sum to the pursuer." (See the form in No. 7 of Schedule A of the Small Debt Act.)

In such a case as we have supposed, it does not seem to be incumbent on the Sheriff to frame an "interlocutor setting forth the separate findings in law and fact on which he has proceeded in giving judgment." That is only necessary where there has been evidence adduced, and where that evidence has been recorded "as above provided for," (sect. 9),—i.e., in any one of the modes specified in sect. 9. Therefore, it is not even necessary when the evidence is contained in a minute of admissions. This reading is confirmed by section 15, which says, that the Book of Causes shall contain the "several deliverances or interlocutors of the Sheriff (except those interlocutors setting forth at length the separate findings in law and fact upon which any judgment of the Sheriff shall have proceeded, of which interlocutors the dates only shall be entered in the Book of Causes)." Consequently, a mere note in the Book is all that is needed, except "where the evidence has been recorded, as above provided for," (sect. 9).

VI. Is there an Appeal on Law?-We are now in a position to approach this difficult point, and we naturally start with the principle laid down in section 17. "No interlocutor, judgment, order, or decree pronounced under authority of this Act, shall be subject to reduction, advocation, suspension or appeal, or any other form of review or stay of diligence, except as herein provided, on any ground whatever." The appeal which is to lie to the Sheriff, and after him (but only after him, and in no case heard by the Sheriff-substitute in the first instance, directly) to the Court of Session, is subject to the provisions of section 10, the rubric of which is, "Appeal competent only when note of evidence has been taken." Unfortunately the section does not exactly say so. It says,-" When neither party has, in the manner above provided, required the Sheriff to take a note of the evidence, it shall not be competent to appeal against the judgment which he shall pronounce, in so far as the findings in fact pronounced by him are concerned, and the said findings shall be final and conclusive, and not subject to review by any Court whatever." But under sections 8 and 9, if the evidence has not been recorded, there are no findings in fact at all; and what remains to go up to the Court of Appeal? Nothing whatever; and compliance by the Sheriffclerk with sections 11 and 12 becomes impossible.

Sec. 11 says that when an appeal is to be taken to the Sheriff, the Sheriff-clerk shall forthwith transmit to him the Summons or Com