controlled and audited as the accounts of the revenue in England have hitherto been. By the act making this alteration, the judicial authority of the Court of Exchequer is left unaffected.2

The Court of Exchequer still retained its authority in the collection and management of the assessed taxes and landtax, and the power of issuing instructions regarding the collection of the revenue, and of superintending the expenditure on public offices and works, criminal prosecutions, &c. These powers, along with the ministerial duties of the court in granting leases of crown property, &c. were removed in 1833, and vested in the treasury. In 1832, the management of the land revenue was appointed to be transferred under warrant from the treasury, and whenever it should be expedient, from the barons of exchequer to the commissioners of woods and forests. It was in the same year enacted, that vacancies occurring in the Court of Exchequer should not be filled up, and that after the retirement or death of the last baron, the duties of the court should be performed by a judge of the Court of Session.5 A judge of the Court of Session now performs the duties, which chiefly consist in issuing writs of extent, and other judicial matters connected with the revenue, and revising signatures on crown charters.6 Two of the judges, who are not commissioners of justiciary, are appointed, according to a routine and regulations made by the court, to perform these duties alternately.7

CHAPTER V.

SHERIFFS.

SECT. 1.-Historical Notice.

THE Sheriff anciently administered justice as the king's principal officer within the district, and his office was hereditary. He is now the principal local judge in his county; but the formality of his being the king's steward or bailie is still preserved, and he, in that capacity, attended to the feudal sources of royal revenue, which by an act of 1845, were appointed to be paid directly to the Exchequer.8

1 2 & 3 Wm. IV. c. 103.-2 Ibid. § 5.-33 & 4 Wm. IV. c. 13, § 1.42 & 3 Wm. IV. c. 112.-5 Ibid. c. 54.-6 5 & 6 Wm. IV. c. 46. 7 Wm. IV. and Vict. c. 65.-7 2 & 3 Vict. c. 36, § 4. 88 & 9 Vict. c. 35, § 6.

A practice existed until lately of giving those who were virtually Sheriffs Principal the title of "Sheriff-depute." This appears to have arisen from a notion that the Sheriff was a depute to some official holding a like position with the High Sheriff in England, and seems to have rested on a clause in the Jurisdiction Act, to the effect that “It shall not be lawful for any Principal, or High Sheriff, or Stewart in Scotland, personally to judge in any cause, civil or criminal, within his shire or stewartry in virtue of such his office, any law or usage in any ways to the contrary notwithstanding."1 The commissioners who reported on the courts of law in 1818, stated that though there had been, soon after the Jurisdiction Act, some instances of the temporary appointment of such an officer, they could not discover any functions which it was his duty or privilege to perform, except those of the Lord Lieutenant, who was the person to whom the commission was generally given.

By the Jurisdiction Act, sheriffs were directed to reside four months during each year in their respective counties, but this regulation is repealed, and sheriffs appointed after 31st December 1838 (those of Edinburgh and Lanark excepted) must remain in attendance on the Court of Session.2

SECT. 2.-Civil Jurisdiction.

The civil jurisdiction of the Sheriff extends to all actions upon contracts, bonds, bills, or other personal obligations to any extent, actions of damages, and the like. He cannot judge in declaratory or rescissory actions, or in those involving a right to heritable property. The Sheriff has jurisdiction, however, in all questions as to nuisance or damage arising from the undue exercise of the right of property, and as to servitudes when no other right is involved with the question.3 Jurisdiction in cases of Cessio Bonorum was added to that of the Sheriff in 1836. A considerable portion of the inquiries and other operations by which public companies acquire right to property for conducting railways and other public works devolve on the Sheriffs; and every year adds to the functions for the preservation of the public peace which are committed to them by statute. The following pages will be found to explain under their several heads the functions thus devolved on the principal local judge. Each Sheriff must hold eight courts during the year, four between 1st December and 12th

120 Geo. II. c. 43, § 30.-2 1 & 2 Vict. c. 119, §§ 1, 2.-3 Ibid. § 15. Brown v. Currie, 1st February 1843.- 6 & 7 Wm. IV. c. 56.

May, and other four between 1st June and 12th November. The Sheriff of Orkney has to hold eight courts between 1st December and 12th November, four in Orkney and four in Shetland.1

Substitutes. Each sheriff has one or more substitutes, by whom the greater part of the duty is performed. These are appointed by the respective sheriffs, but are not removable, except with the consent of the Lord President and Lord Justice Clerk.2 The sheriff-substitute must not be absent from the county more than six weeks in one year, or more than two weeks at a time, unless with the consent of the sheriff, who must then act personally, or appoint another substitute. No substitute can act as a law-agent, conveyancer, factor, or banker.3 Cases in the Sheriff Court are, in the first instance, decided by the sheriff-substitute, and a litigant discontented with such decision may appeal to the sheriff, by a simple note, without any new pleading.

The methods by which the decision of the sheriff is brought under review by the Court of Session are treated above.

Procedure. The form of process in the Sheriff Court resembles that in the Court of Session. The defender is in ordinary cases brought into court by a summons, in the name of the Sheriff, and subscribed by the clerk of court. In the majority of cases the "inducia," or the period elapsing between citation and the time for entering appearance, is six free days. Until the act of 1838 regulating the jurisdiction of sheriffs, they could not compel the appearance of witnesses, holders of documents, &c., residing beyond their respective counties, except by letters of supplement from the Court of Session; but the citations and warrants granted in one county are now available in any other county, on being indorsed by the sheriff-clerk thereof.5 By another act of the same date, for amending the law in matters of diligence, sheriffs are authorized to imprison for civil debt, a power which they did not formerly possess. The warrant to that effect may be executed in another sheriffdom by a concurrence from the Sheriff Court there.6

SECT. 3.-Criminal Jurisdiction.

The criminal jurisdiction of the Sheriff within his county is, with the exceptions noticed below, concurrent with that

1 1 & 2 Vict. c. 119, § 2.- 2 Ibid. §§ 3, 4.-3 Ibid. § 5.- Maclaurin's Form of Process before the Sheriff Courts. M'Glashan's Practical Notes on Act of Sederunt 12th November 1825.-5 1 & 2 Vict. c. 119, § 24.6 Ibid. c. 114.

of the Court of Justiciary over the country. The Sheriff anciently exercised the power of trying for murder; but jurisdiction in the four pleas of the crown-murder, robbery, rape, and wilful fire-raising-is now considered as exclusive to the Court of Justiciary, and the power of the Sheriff to condemn to death has long been practically abolished. Having no jurisdiction beyond the limits of his county, he cannot transport, nor can he banish, except from his county.* He frequently, however, tries such crimes as might in strict law be, but are not in general, punished with death or transportation by the superior court, awarding the punishment of imprisonment. He cannot try a crime created by statute, and declared punishable by transportation, or by such inferior punishment as may by law be inflicted on persons convicted of a 66 transportable offence."1 The Sheriff tries with or without a jury, according to the nature of the case; and the circumstances in which the one or the other system is to be adopted, along with the forms to be used, are regulated by an act of Parliament, and corresponding act of Adjournal.2

Jury. In the case of trial by jury the form is in all essentials the same as that of a trial before the Supreme Court (see Index, Jury), with the exception that the judge must keep an authenticated note of the evidence, that, if necessary, it may be produced in the Supreme Court.3 There are some slight distinctions in the manner of commencing the prosecution, which will be found under the head of Prosecutors. In trials by jury, the induciæ, or period elapsing between the day of citing the prisoner and his appearance, must be fifteen free days.*

Without Jury.-If the Sheriff is to try without a jury, he may do so on induciæ or notice of not less than six days, or summarily. In the former case the punishment is limited to "fine, imprisonment, and banishment, or any of them,"5 and there appears to be no definite distinction between the cases which require a jury, and those which do not, as the Sheriff scarcely ever exceeds these punishments. In such trials without jury, it would appear that the evidence must be taken down and authenticated." Where the trial is in

*By statute, banishment from Scotland, or from any district in it, is prohibited, excepting in cases enacted to be so punished by acts of the Scottish Parliament, 11 Geo. IV. & 1 Wm. IV. c. 37, § 10. A. Prac. 37.-26 Geo. IV. c. 23. Act of Adjournal, 17th March 1827, Shaw's Justiciary Reports, 180.-39 Geo. IV. c. 29, § 17.- Act of Ad. 17th March 1827, chap. i. § 2.-5 Ibid. § 3.- 9 Geo. IV. c. 29, § 18.

what is termed, a summary way," it is not necessary that the accused should receive previous warning; but if he have not, he may, on being brought before the sheriff, require a copy of the libel against him, and demand that the trial shall be postponed for forty-eight hours. The punishment cannot exceed a fine of £10, with expenses, or imprisonment for sixty days, accompanied with caution for good behaviour for not more than six months, under a penalty not exceeding £20. If the accused plead "not guilty," a record must be preserved of the charge, the judgment, and the names of witnesses as examined on oath.2 To prevent a demand for delay, the approved practice is to give the accused forty-eight hours' warning, by putting a copy of the libel or accusation into his hands. By the act regulating the jurisdiction of sheriffs, their warrants against criminals for offences within their counties may be executed in any part of Scotland by a messenger-at arms, or an officer of the court which issues the warrant.3

CHAPTER VI.

CORPORATION COURTS.

SECT. 1.-Burgh Courts.

Royal Burghs.-THE magistrates of royal burghs have been in the practice of deciding, through one of their number, in minor civil actions between the inhabitants, and though their jurisdiction is not very clearly defined, "it is the general opinion that royal burghs have as extensive a civil jurisdiction within the burgh, as the Sheriff hath in his territory." The above rules as to procedure in crimes, as well as the rules for civil processes, established by act of sederunt of 12th November 1825, apply to the courts held by the magistrates of royal burghs; while at the same time. some of the larger burghs are sheriffdoms, and their magistrates have a jurisdiction cumulative with that of the Sheriff of the county. Magistrates may thus try for crimes.

5

111 Geo. IV. & 1 Wm. IV. c. 37, § 4.-29 Geo. IV. c. 29, § 19.-3 1 & 2 Vict. c. 119, § 25.- E. i. 4. 21.-56 Geo. IV. c. 23, § 7.