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Court of Exchequer (Scotland).
Lord Ordinary may appear to the Lord Ordinary to require Despatch, being within his Competency under this Act, and also to try any Cause under this Act, and to pronounce Judgment therein, and in case of the Absence or Inability of the Lord Ordinary, any Duties devolving on him under this Act may, during such Absence or Inability, be performed by any other Lord Ordinary of the Court of Session acting in his Room and Stead.
Clerks to Lord
Ordinary in Exchequer Causes to be Clerks in
Subpœna to be
called in Court as a Summons,
and Procedure thereon.
IV. The Depute and Assistant Clerks of Session attached to the Lord Ordinary in Exchequer Causes shall be Clerks in all such Causes in the Outer House; and it shall be lawful for the Commissioners of Her Majesty's Treasury to grant to such Assistant Clerk of Session, in respect of the Increase of his Duties under this Act, an annual Allowance not exceeding Fifty Pounds per Annum, in addition to his ordinary Salary; and such Allowance shall be paid out of any Monies which may from Time to Time be voted by Parliament for that Purpose.
V. It shall be competent to the Lord Advocate, on the Behalf of Her Majesty, to commence any such Cause by issuing or causing to be issued against the Defender a Subpoena in the Form, as nearly as may be, of Schedule A. hereunto annexed, which Subpoena may be served upon the Defender and Execution of Service returned in the like Manner as any ordinary Summons before the Court of Session may be served and Execution thereof returned; provided that such Service may be made either by a Messenger-at-Arms, or Sheriff Officer, or by an Excise Officer or other Officer of the Department of Inland Revenue, or any Officer of the Customs.
VI. On the Expiration of the Induciæ of any such Subpoena, such Subpoena may be called in the Court of Session, and thereafter enrolled, in the like Manner as any ordinary Summons; and the Lord Ordinary shall, at the Outset of the Cause, unless the Information to which such Subpoena relates be then produced and lodged in Process, pronounce an Interlocutor allowing such Information to be lodged in Process, and no further Proceeding shall take place until such Information be lodged; and upon such Information being lodged a Copy thereof shall be served upon the Defender, unless such Service shall have been previously made; and the Transmission of such Copy through the Post, addressed to his known Residence or Place of Business, shall be deemed sufficient Service; and a Certificate by any One Person, written on the Information itself and signed, bearing that a Copy thereof has been served upon the Defender, shall be prima facie Evidence of such Service having been duly made; and after the Information shall have been served as aforesaid, the Lord Ordinary shall, if the Defender shall admit the Truth of the Information, or of such Part thereof as may be insisted in against him, or do not appear, give Decree in Terms of the said Information, so far as the same shall be insisted in; and if the Defender shall appear, and shall not admit as aforesaid, the Lord Ordinary shall appoint a Day for hearing the Parties upon such Information, where this may appear to him to be necessary, or shall appoint a Day for trying the Matters put in Issue by such Information, without any Adjustment
Court of Exchequer (Scotland).
Adjustment of any separate Issue or Issues, or shall take such other Course as to him may seem proper; and where a Day shall be so appointed for Trial, a Common or Special Jury (where a Special Jury shall be applied for and granted) shall be summoned and empanelled, as in any ordinary Jury Cause before the Court of Session to be tried by a Lord Ordinary in the Outer House; and the Lord Ordinary in Exchequer Causes shall preside at such Trial, and at all other Trials of Exchequer Causes under this Act, unless in any particular Case, upon a special Request by such Lord Ordinary to that Effect to either of the Two Divisions of the Court of Session, another Lord Ordinary shall be appointed to preside in his Stead; and the Verdict of the Jury may be in one or other of the Forms in the Schedule C. hereunto annexed, or in such other Form as may be applicable to the Case, and shall be subject to the Provisions of the Act of the Seventeenth and Eighteenth of Queen Victoria, Chapter Fifty-nine; and on such Verdict being given the Lord Ordinary presiding at the Trial shall pronounce Decree in conformity therewith, and as may be just and according to Law.
VII. Every Information to be lodged in Terms of this Act Form of Inshall be in the Form, as nearly as may be, of the Schedule B. here- formation in Causes comunto annexed; and it shall be competent to the Lord Advocate, menced by Subon the Behalf of Her Majesty, to amend his Information at any pœna. Time before Verdict; provided that no such Amendment shall be made by the Lord Advocate after a Day has been fixed for Trial, unless upon Payment to the Defender of his Expenses previously incurred: Provided also, that it shall not be necessary to mention in any Information any Act of Parliament other than the Act imposing any Penalty or Duty claimed, or creating any Debt sought to be recovered; and provided further, that, notwithstanding the Terms of any such Information, it shall not be incumbent to prove against the Defender, in order to recover under such Information, any Matters stated therein, except only such Matters as are by Law required to be proved in order to the Forfeiture of the Penalty, or the Recovery of the Duty or Debt, or the Condemnation of the Seizure sought for.
agreed upon the
VIII. Where in any such Cause commenced by Subpoena as Special Case aforesaid the Parties shall be agreed upon the Facts, and shall dis- may be lodged pute only on the Law, it shall be competent for them to lodge in where Parties Process a Special Case, signed by themselves or their Counsel, Facts. setting forth the Facts on which they are so agreed and upon which the Question of Law arises, and such Special Case shall be equivalent to a Special Verdict finding such Facts, and raising a Question of Law for the Lord Ordinary.
IX. The Procedure in all Cases commenced by Subpoena as Procedure in aforesaid shall, in so far as not specially provided for by this Act, Cases combe regulated by the Lord Ordinary, subject to any Rules and Regu- menced by Sublations to be framed as after mentioned, in such Way and Manner pœna, so far as as to the Lord Ordinary shall seem proper and expedient; and, in provided, how so far as not so regulated, shall be conducted as nearly as may be to be regulated. in conformity with the Procedure before the Court of Session in ordinary Actions; provided that Protestation shall not be appli
Proceedings may be comInenced by Summons in place of Subpœna; and Pro
Summons to be
the same as in Ordinary Court of Session Cases.
in Cases of Seizure.
Court of Exchequer (Scotland).
cable to any such Cases, nor shall any Record require to be made up by Defences, or revised Condescendence and Defences, or to be closed; provided also, that no such Cases shall fall asleep, or require to be wakened; but when any Exchequer Cause shall have lain over for such Period after the passing of this Act as in the Case of any ordinary Action before the Court of Session would have rendered such ordinary Action a sleeping Process, such Exchequer Cause shall not be moved in by the Lord Ordinary or the Court until the Expiration of Ten Days from the Date of written Notice being given by the Pursuer or Defender to the opposite Party in the Cause that the Cause is to be further proceeded with.
X. It shall be competent to the Lord Advocate, on the Behalf of Her Majesty, in place of proceeding by Subpoena and Information as herein-before provided, to commence any such Cause by a Summons in one or other of the Forms in use in the Court of Session for the Time being; and Proceedings may also be taken by Summons as aforesaid at the Instance of any Person or Persons alleging a Ground of Action against the Crown; and where such Cause shall be commenced by Summons, the whole Proceedings shall be conducted throughout as nearly as may be in the like Way and Manner as in Causes depending before the Court of Session, other than Exchequer Causes; and every such Summons to be raised on the Behalf of Her Majesty may contain Warrant to arrest on the Dependence; and all Diligence shall be competent upon every such Summons to be raised on the Behalf of Her Majesty, and upon any Warrant to arrest on the Dependence contained therein, and with such and the like Operation and Effect as upon any ordinary Summons, or Warrant to arrest on the Dependence contained therein before the Court of Session, according to the Law and Practice in use in the said Court for the Time in ordinary Causes.
XI. Where any Seizure shall be made by any Officer entitled to make such Seizure, where judicial Condemnation thereof shall be requisite in the Court of Session, an Appraisement of the Articles comprehended therein shall be made in the Form, as nearly as may be, of the Schedule D. hereunto annexed; and such Appraisement shall be lodged in the Office of the Clerk of Court attached to the Lord Ordinary within Thirty Days after such Seizure, and such Appraisement of Seizure shall be included by the said Clerk of Court, and published in the Weekly Calling List of the Court of Session not later than Fourteen Days after being lodged with him as aforesaid; and a Claim for the Articles comprehended in such Seizure, or any of them, in the Form, as nearly as may be, of the Schedule E. hereunto annexed, may be lodged with the said Clerk of Court at any Time within Eight Days from the Date of the Calling of such Appraisement as aforesaid; and it shall be competent to the Lord Advocate, on the Behalf of Her Majesty, or to the Party claiming such Seizure, to enrol such Appraisement of Seizure in the Weekly Roll of Court of Session Causes at any Time after the Expiration of the said Eight Days; and at the calling of such Appraisement in the said Weekly Roll, if no Claim to such Seizure shall have been lodged, the Lord Ordinary shall pronounce Decree
Court of Exchequer (Scotland).
of Condemnation of such Seizure, and thereupon such Seizure shall belong to and be at the Disposal of the Crown; and if a Claim to such Seizure shall have been lodged as aforesaid, the Lord Ordinary shall pronounce an Order upon the Lord Advocate to lodge an Information of Seizure on the Behalf of Her Majesty; and, upon such Information of Seizure being lodged, the Procedure shall thenceforward be conducted, as nearly as may be, in the like Manner as in ordinary Causes commenced by Subpoena and Information, in Terms of this Act.
XII. Where any Cause may, at the Date of the passing of this Procedure in Act, be competently commenced before the Court of Exchequer by lieu of Writs of Writ of Capias, or where, at the Date of the passing of this Act, Capias, &c. it is competent to apprehend the Defender or Person complained of, in order that he may find Security to appear and answer, or to pay the Penalties, Duties, or Debt sought to be recovered, it shall be competent to pray or conclude in any Information, Summons, or Proceeding to be raised under this Act for Warrant to apprehend such Defender or Person complained of; and such Warrant shall be granted by the Lord Ordinary on Production to him at any Time, whether during Session or not, of the Information or other Writ containing such Prayer or Conclusion, although the same may not have been served, or called, or enrolled; and in every such Case the Defender, or Person complained of, when apprehended, shall be bound with Two sufficient Sureties, to the Satisfaction of the Prosecutor or of the Lord Ordinary, to appear and answer in the Proceeding brought against him as aforesaid, and to pay the Penalties, Duties, or Debt sought to be recovered, if he shall be found liable therein, or such Sum or Sums as under such Proceeding he may be found liable to pay; and failing his finding such Security, the Lord Ordinary shall grant Warrant for detaining him in Prison, and he shall be detained in Prison accordingly, until such Security be found, or until the Issue of such Proceeding, or until he be liberated in due Course of Law.
XIII. In all Cases where, according to the Practice of the Court Procedure in of Exchequer at the Date of the passing of this Act, any Rent- lieu of Writs of charges or Penalties may be levied by Process of the Pipe, it shall the Pipe. be competent for the Lord Ordinary in Exchequer Causes, and he is hereby required, upon the Production to him of a Certificate by any Person charged with the Recovery or Collection of such Rentcharges or Penalties, setting forth that any such Rentcharge or Penalty is due, and the Amount and other Particulars thereof, and the Party or Parties indebted therein, and that he has been unable to recover the same, to issue ex parte, and without the Form of any written Application, a Decree decerning and ordaining such Party or Parties to make Payment of such Rentcharge or Penalty; provided that all Penalties which may be incurred in One County or Stewartry may be included in One Decree and Charge: Provided also, that any Charge to be given on such Decree, or any Diligence following thereon, may be brought under Suspension by the Party against whom the same is directed, but no such Suspension shall be competent before a Charge has been given.
Court of Exchequer (Scotland).
XIV. In all Cases in which, if occurring at the Date of the lieu of Injunc- passing of this Act, any Person or Persons would be liable to be stayed by Injunction furth of the Court of Exchequer, whether in respect of such Person or Persons prosecuting or threatening to prosecute before any Court other than the Court of Exchequer in any Matters connected with the Revenue, or with the Proceedings of Officers of the Revenue, or in any other Matters as to which exclusive Jurisdiction is at present possessed by the Court of Exchequer, or otherwise, it shall be competent to apply to the Lord Ordinary in Exchequer Causes to restrain such Person or Persons by Interdict from following out such Prosecution in another Court or otherwise, according to the Circumstances of the Case ; and such Application may be made by a Note of Interdict having a Statement of Facts and Note of Pleas in Law appended thereto, all as nearly as may be in the Form at present in use in the Court of Session; and such Note of Interdict shall be lodged in the Office of the Clerk of Court attached to the said Lord Ordinary, and shall be forthwith submitted by such Clerk to the said Lord Ordinary, who may thereupon at once grant Interdict or at once refuse to grant it, or appoint such Note of Interdict in the first place to be served, and if need be to be answered, or Parties to be heard thereon with or without Answers, and may thereupon give Decree granting or refusing Interdict, or may take such other Course in regard to such Application for Interdict as to him may seem proper; provided, that where Interdict shall be granted as aforesaid with reference to any Cause requiring to be instituted within a limited Time, or which, if not instituted within a limited Time, may be competently objected to as not timeously brought, the Time which may have elapsed between the Date of the Service of such Interdict and the Date of the Institution of such Cause to which such Interdict relates, with Ten Free Days in addition thereto, shall be added to the Period limited as aforesaid, and such Cause shall be deemed and taken to be timeously brought, if instituted at any Time within such extended Period.
Procedure in lieu of Man
XV. In all Cases where, at the Date of the passing of this Act, it would be competent to apply to the Court of Exchequer for a Rule upon any Person or Persons to show Cause why a Mandamus should not issue against such Person or Persons, directing him or them to do any Act or to perform any Duty, and for such Court of Exchequer, failing such Cause being shown, to issue a Mandamus against such Person or Persons to the Effect aforesaid, it shall be competent to apply to the Lord Ordinary in Exchequer Causes by summary Petition, setting forth briefly the Facts on which the Application is based, for an Order on such Person or Persons decerning and ordaining him or them to do the Act, or to perform the Duty which he or they is or are refusing or neglecting to do or perform; and in the event of the Failure of such Person or Persons to conform and to implement the Terms of said Order, to pay conjointly and severally, or jointly, or otherwise as to the Lord Ordinary may seem fit, such Sum or Sums of Money as may be reasonably demanded in respect of such Failure, and that either