caption is issued; but where caption is competent execution will not be stayed upon a mere caveat. (c) The proper form of applying for stay of execution is by a note to the Sheriff(not to the Court of Session, unless relief have been refused in the Sheriff Court)-and the note should contain an offer of caution or consignation.(d) The amount for which caution is to be found will be partly a matter for discretion. In some cases it will be enough to find caution for all damages which may be occasioned by the sist. In others the party may be required to find caution for all loss that may be occasioned by the non-return of the process. (e) In other cases, especially if there has already been delay, a sist on caution will be refused altogether. (g) On consignation of the full sum at issue, a sist for inquiry would scarcely be refused; but it would still remain for decision (on the result of the inquiry) whether the caption should finally be recalled. The application for a sist is in general made by the borrowing agent, but where a person had (under a misapprehension) acted as the borrowing agent's clerk without authority to do so, he was allowed to make the application.(h) 11. Damages for Wrongous Execution.-Applications for process caption are made periculo petentis; and if the caption is carried through in circumstances which do not authorise it, the private party and his agent who enforced it are liable, jointly and severally, in damages to the incarcerated party.(i) (c) Patrick, 3 June 1854, 26 Jur. 459. (d) Pagan v. Horsburgh, 14 Feb. 1835, 13 S. 471; Johnston v. Dunn, 23 Feb. 1839, D. 567. (e) Livingstone v. Beveridge, supra, note (b). (g) Fleck v. Bryce, 25 June 1845, 17 Jur. 155. (h) Black v. White, 6 Dec. 1834, 13 S. 134. (i) Hunter v. Kerr, 28 March 1842, Section VIII.-OF INTERIM DECREES. The practice of pronouncing interim decrees in the Sheriff Court, though recognised by various Acts of Parliament, (k) is not governed by any special regulations, but is subject to the same principles as guide the Court of Session. Such decrees are pronounced either when the defender admits a sum to be due, or when it otherwise sufficiently appears that a sum is due by him. It is seldom expedient to pronounce an interim decree till the record is closed, but there is no absolute incompetency in doing so. In the Court of Session some doubt was entertained whether the clause in the Judicature Act,(7) prohibiting the Court from giving judgment on the merits until the record was closed, did not prohibit an interim decree, but it was settled that it did not; (n) and in the Sheriff Court, where there is no provision, the matter is clear. Where the defences therefore contain an admission of a sum due, interim decree for it is often pronounced. Where the pursuer is reputedly solvent, it is not a sufficient reason for refusing interim decree that the defender would like to retain the sum to keep himself safe against expenses that may be occasioned in the remainder of the process; but the pronouncing of interim decree is to some extent matter of discretion, and there are cases in which very nice considerations may arise as to whether interim decree, even for an admitted balance, ought to be given. (0) Special leave is still required to extract an interim decree, and that leave may either be embodied in the decree or given subsequently. (p) A judicial reference is a proceeding by which the decision of a case is withdrawn from the Court, and submitted to one. or more arbiters. (q) 1. How Judicial Reference made.-A judicial reference must be entered into with the consent of both parties. This consent must be embodied in a minute; and the agent requires special authority before he can consent for his client.(r) The minute refers the case to the decision of one or more arbiters, either specially named or (as is sometimes done) left to be named by the Court. If there are two arbiters, power should be given to choose an oversman, as otherwise the reference might become abortive by their differing in opinion. The reference may refer either the whole or a part of the cause,―subject always to the approval of the judge. The minute requires to have the authority of the Court interponed to it. Until this has been done the reference is in (0) See M'Allister v. Duthie, 15 June 1867, 5 Macph. 912. (p) Buchanan v. Young, 13 Jan. 1860, 22 D. 371; and see Taylor v. Jarvis, 20 March 1860, 22 D. 1031. (9) A very full and valuable ac count of the Judicial Reference will complete, and it is in the power of either party to withdraw from it.(s) If, however, the interponing of authority have been accidentally omitted, and the parties have gone on with the reference, the subsequent proceedings will form a bar to either party pleading want of authority. (t) After authority has been interponed, neither party can withdraw from the reference or move the Court to recall it without the consent of the other. (u) 2. Time of Judicial Reference.-A reference may be entered into at any stage of a process which is before the Court. 3. Effect of Judicial Reference.-Notwithstanding the reference the process remains in Court. It may be enrolled at any time for the purpose of pronouncing orders necessary to the carrying out of the reference-such as those giving warrant to cite witnesses, diligences to recover documents, and so on. (v) So much is the reference considered to be in Court, that it is only agents who can practise before the Court who can practise before the referee. (x) If the process falls the reference also falls. Under the old rules as to falling asleep, if the process fell asleep it was more than doubtful whether anything could be done under the reference till it was awakened. Under the new forms, it is clear that when the process stands dismissed for failure to take a proceeding within three months the reference also is (8) Reid v. Henderson, 26 June 1841, 3 D. 1102; Bell on Arbitration, p. 267. (t) Fairley v. M'Gowan, 11 Feb. 1836, 14 S. 470. (u) Walker v. Stewart, 14 Aug. 1855, 2 Macq. 424 (v) Bell on Arbitration, p. 272. (x) Ireland v. Wilson, 25 June 1851, 13 D. 1226. The point here involved was whether the agent required to have the attorney licence. dismissed, and that nothing can be done till the process is revived. A proceeding in the reference is enough to prevent the statutory dismissal.(y) 4. Proceedings of Referee.-The first step of the referee is usually to accept the reference. This may be done by a docquet on the minute of reference, but it is not a necessary step, and often the only evidence of acceptance is acting. The referee, if he considers it expedient, may appoint a clerk.(z) If the reference have been made before a record has been closed, the referee may very generally take this as evidence that the parties do not desire farther pleadings; but it is very much a matter of discretion what the referee may do in this respect; and so long as he acts fairly to both sides, and conscientiously, the Court will not interfere with him, unless it should be made plain that he has omitted to order pleadings in a case where it was impossible to do justice without them. (a) If the referee does order pleadings, the best way for him will be to follow the style of record used in the ordinary court. He may, however, confine himself to appointing each party to give in a claim, stating (without argument) the facts they aver and the demands they make; and if he thinks fit he may allow an answer to each party, or allow each party to revise his claim after he has seen that of the other.(b) In regard to proof, the referee is again left very much to his own discretion. It is for him to consider whether (y) See supra, p. 266, and Bell on Arbitration, p. 276, note 2. (2) Bell on Arbitration, p. 270. In England he may also appoint a law agent to help; Potter v. Rankin, 23 Nov. 1868, 38 L. J. (C. P.) 130. |