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The interim protection is granted on caution (for a sum fixed by the Sheriff) that the debtor will attend all diets of Court whenever required. If forfeited, the amount in the bond must be divided amongst the creditors; but it could not well be forfeited unless the debtor had failed to attend after having been specially ordained to attend at the diet, and after intimation of the order having been made to the cautioners.(s)

The warrant of interim protection and liberation is good in all parts of Scotland. (t)

It is not competent by an appeal or by a reclaiming petition to suspend the effect of the warrant of protection; but on a reclaiming petition (to be presented and dealt with in the same way as one upon the merits) the warrant may be recalled. (t)

For the limited purpose of attending the examination, it is competent for the Sheriff to grant a warrant to bring the debtor from and take him back to prison;(t) and this warrant, like the more general warrant of protection, is valid throughout Scotland.

12. Cases remitted from Court of Session.-When a process of cessio has been commenced in the Court of Session, it is competent to remit it to the Sheriff of the county of the debtor's domicile, for the purpose of taking the examination. When such a remit is made the Sheriff takes the examination in the usual way, and reports the case to the Court of Session. (u)

13. Renewing Application.—Where decree of cessio has been refused in the Sheriff Court in hoc statu, the application (t) Act, § 15. (u) Act, § 12.

(8) A. S. ? 20.

may be renewed at any time. The debtor does this by a minute, which must be intimated by posting prepaid letters to each creditor. The fact of the dispatch of these letters must be established by satisfactory certificates, and the case cannot be taken up till twenty days after the date of the dispatch. Where the original application was to the Court of Session, the debtor may either renew it there, or he may present a new petition to the Sheriff. In the latter event the proceedings are conducted as if no former application. had been made. (v)

14. Oath on getting Decree.-On getting decree of cessio the debtor is bound to take an oath or affirmation that the state of affairs given up is true to the best of his knowledge and belief, and that he has no property except what he has made known and given over to his creditors. The form of oath is prescribed by the Act of Sederunt.(x)

15. Disposition omnium bonorum.-It is optional to require the debtor to execute a disposition omnium bonorum in favour of the trustee mentioned in the decree of cessio; and as the Act (§ 16) provides that the decree itself is to operate as an assignation of the debtor's moveable property, it is unnecessary to take one unless the debtor has any heritable estate. Where such a disposition is wanted, the better plan is not to give the protection till it has been signed. There is a convenience, where this is not done, in putting the obligation expressly in the decree, because in that case, if the debtor refuse to grant the disposition, the decree may be extracted by the incarcerating creditor, and the debtor again imprisoned under it, as under a decree ad (v) Act, § 17; A. S. § 22. (x) A. S. Sched. C.

factum præestandum. (y) The deed is executed at the cost of the creditors.

Section III.-PROCEEDINGS UNDER CONJUGAL RIGHTS ACTS.

1. Nature of Remedy.
2. Mode of Application.
3. Undefended Causes.
4. Defended Causes.

5. Intimation of Order.

6. Appeal against Order.

7. Recal of Order.

1. Nature of Remedy.-Under the Conjugal Rights Amendment Act of 1874, a valuable jurisdiction is conferred upon the Sheriff Courts. Under the corresponding Act of 1861 the Court of Session had power given to it to grant to deserted wives orders protecting their property from their husbands, or husbands' creditors. The expense of procedure under that Act, however, prevented many persons from availing themselves of its benefits, and it was found necessary to extend the power to the Sheriff Court. (2)

The persons who may apply are wives deserted by their husbands. The remedy asked is an order "to protect property that they have acquired, or may acquire, by their own industry after such desertion, and property which they have succeeded to, or may succeed to, or acquire right to after such desertion, against their husbands or creditors of their husbands, or any persons claiming in or through the rights of their husbands." (a) The order of protection, if granted, has during its subsistence the effect of a decree of separation a

(y) Taylor v. Macdonald, 21 Jan. 1854, 16 D. 378.

(2) 24 and 25 Vict. c. 86, sections 1 to 5, inclusive, and 37 and 38 Vict.

c. 31, both printed in the Appx. Part II. Chapter III.

(a) Act of 1874, 22, and 1861, 21.

mensa et thoro, in regard to the property, rights, and obligations both of the husband and of the wife. It has also the effect of such a decree in regard to the wife's capacity to sue and be sued. (b) The statute adds that the property which the protection covers, that is, what has become the wife's after desertion, "shall belong to her as if she were unmarried." But there is exempt from the protection (1) property of which, before the date of the application, the husband has obtained full and complete possession; (2) property which, before the date of the order, a creditor has attached by arrestment, followed by a decree of furthcoming; and (3) property which, before the date of the order, the creditor has poinded, and of which he has carried through and reported a sale. (c) It will be observed that in these exemptions the husband's rights end with the date of presenting the petition, while the creditors' do not end till the actual granting of the order.

2. Mode of Application.-The wife makes the application by petition in the ordinary form in use in the Sheriff Court. (d) It should set forth the fact of the marriage and the date of the desertion, and pray for an order in terms of the statute. The Sheriff upon this grants an order for intimation. (e) If the husband be subject to the Sheriff's jurisdiction, it is apparently left for the Sheriff to fix the induciæ in the usual manner, and the service is in the ordinary form. Where the husband has left Scotland the Sheriff's jurisdiction still subsists, but the induciæ must be

(b) Act of 1861, 5. (c) Ib. 2 4.

(d) Act of 1874, § 2 (1).

(e) Act of 1874, 22 (2); Act of 1861, 1.

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twenty-one days, the citation must be edictal, and a copy of the petition must be sent to his last known address. (g)

3. Undefended Causes.-If appearance be not entered on the expiry of the inducice, the Sheriff proceeds to dispose of the cause. He is directed to require evidence of the desertion. On comparing this direction with the anxious way in which he is directed how to take the proof in defended causes, it might be supposed that he was not bound to take proof in undefended causes in the ordinary way, but might proceed on any evidence which might be satisfactory to himself. It may, however, save trouble, and be more regular, if he appoint and take a proof in the usual way. If it be sufficient he will at once grant the order of protection. (h)

4. Defended Causes.-Appearance to defend the cause may be entered either by the husband or by any creditor claiming through him. There is no provision for intimation to creditors, and no express words giving them power to appear, but as their power to oppose is recognised,(i) they must have the means of making it effectual. Where appearance is entered a record must be made up. (k) In the Court of Session it is made up by allowing answers to be received; but although this mode does not seem incompetent, it would be preferable to close the record on a minute of defence, in terms of the Act of 1853. In summary proceedings, such as are contemplated, it would be against the meaning of the statutes to order a record by

(g) Act of 1874, 22 (5); Act of 1861, 2 1.

(h) Act of 1861, 2 1.

(i) Act of 1861, 2.
(k) Act of 1874, 22 (1).

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