principal Sheriff. (v) When interim interdict, granted by the Sheriff-Substitute, has been recalled by him, an appeal against the interlocutor recalling has not the effect of continuing the interdict, for the process is in the same position as if interim interdict had never been granted. (x)

Under the old forms, though a process fell asleep an interim interdict remained effectual; (y) but under the new forms, if a process stood dismissed under the Act of 1853, for failure to take proceedings, an interim interdict granted would be held to fall with the action.

4. Caveat against Interim Interdict.-When a party has reason to fear that another is to apply for interdict against him, he can enter (with the Sheriff-Clerk) a “caveat,” and this will ensure him notice of the presentation of the petition, and an opportunity of being heard before interim interdict is granted. He must be prepared, however, to discuss the question immediately on receiving the notice, because he is not entitled to time.

5. Proceedings in Interdict Process.-Except as regards the matter of interim interdict, the process of interdict is conducted in the ordinary style of a process commencing by petition.

6. Competency of applying to Two Courts.-It has happened that parties have presented petitions for interdict both to the Court of Session and to the Judge Ordinary; but in such an event there can be little doubt that the second application is incompetent-if both are not-for there is no

(v) Argyle v. M'Arthur, 28 June 1861, 23 D. 1236.

(x) Laird v. Mill, 16 Nov. 1833, 12 S. 54.

(y) Hamilton v. Allan (Court of Session case), 16 Feb. 1861, 23 D. 589.

authority for holding that the ordinary rules as to lis alibi pendens do not apply to interdict as well as to other processes. In a case where interim interdict was refused in the Sheriff Court, and the pursuer (without abandoning the proceedings there) brought a process of interdict in the Court of Session, Lord Deas and Ardmillan thought it incompetent; and though the other two Judges of the First Division decided the case on the relevancy, they suggested no opposite opinion on this point.(z)

7. Breach of Interdict.-The remedy given by an interdict being a negative one, the holder of the decree cannot enforce it-except as to the expenses-by imprisonment, as if it were a decree ad factum præstandum. If the defender transgress the order, the pursuer's remedy is to prosecute for breach of interdict. This is done by a summary petition, in which the pursuer can conclude to have matters restored as they were, to have the defender found liable in damages,to have him made to find caution not to repeat the offence, (a) -to have him fined for contempt of Court,—and imprisoned if he fail to pay the fine,—and to have him found liable in expenses. If the petition contains a prayer for fine or imprisonment, it comes to have somewhat of the character of a criminal prosecution; the concurrence of the procurator-fiscal is required; (b) and it seems that the defender must be present at the time of pronouncing sentence. (c) The procedure is otherwise the same as in an ordinary summary petition.

(z) See Cathcart v. Sloss, supra, note (g).

(a) See Gray v. Petrie, 17 Feb. 1848, 10 D. 718, for an example of caution being ordered.

(6) Northumberland v. Harris, 23

Feb. 1832, 10 S. 366.

(c) See authorities cited in Anderson v. Connacher, 20 Dec. 1850, 13 D. 405. The defender is not required where he is merely found liable in expenses.

A record is made up and closed, usually in the short form, and a proof is allowed, which is taken and recorded in the way proper to civil actions. (d) The defender may be judicially examined, (e) though it would be unsafe to examine him as a witness. (g) The pursuer must prove the breach of the interdict; and, as the consequences are serious great exactness is required, the interdict being strictly construed. An interdict against drawing boats upon an island was not held to be infringed by the defender drawing his boat till it grounded in the shallow water on the shore. (h) The penalty in a breach of interdict is in the discretion of the Court, and the fine varies, according to the circumstances, from a nominal fine to one of large amount. (i) It is made payable to the public prosecutor, and he may recover it by the method in use for civil decrees; (k) or, if the sentence contain authority to that effect, may imprison the defender, for the time specified, in case of non-payment.

Section XII.-LAWBURROWS.

Lawburrows is an old form of process, still in use, by which a person who dreads bodily harm from another obliges the other to find caution not to trouble him.

(d) Henderson v. Maclellan, 23 May 1874, 1 R. 921.

(e) Mackay v. Ross, 23 Sept. 1853, 1 Irv. 288. The case of Duncan v. Ramsay, 15 April 1853, 1 Irv. 208, proceeded on specialties.

(g) Compare Dickson on Evidence, 21707.

(h) Menzies v. Macdonald, 13 Feb. 1864, 2 Macph. 652.

(i) Caledonian Railway v. Hamilton, 3 Aug. 1850, 7 Bell's Ap. Ca. 272.

(k) Beattie v. Rodger, 14 Nov. 1835, 14 S. 6.

The mode of application is by a petition setting forth (in substance) the fear which the applicant entertains, and concluding that the defender be bound to find caution for a specified sum not to molest the pursuer, and that, if he fail to find caution, he be put in prison. The sum for which caution has to be found is specified in one() of the many old statutes authorising the process, for different classes of persons; but as the penalties fixed are now inadequate, the Sheriff exercises the power, on application, of making the penalty larger. After presenting the petition the applicant appears before the Sheriff and swears to its truth. Upon this, in the ordinary case, the order to find caution is at once issued; but in cases between husband and wife, (n) or parent and child, (o) the applicant must bring some evidence that he has cause to dread bodily harm. The order fixes the amount of caution to be found, and allows a certain short time for the defender to find it. The service of this notice by an officer of Court is the first which the defender usually knows of the proceeding. If he fail to find caution within the period allowed, he can be imprisoned under the warrant until he does find it. The debt being a civil one, the pursuer would probably have to aliment the prisoner while in prison.

If the warrant has been improperly obtained, the defender must apply to the Court of Session for redress, and this he

() 1593, c. 170. For an earl or lord the penalty is £2000 Scots; for a great baron, £1000 Scots; for a freeholder, 1000 merks; for a feuar, 500 merks; for a yeoman, 100 merks; for a landless gentleman, 200 merks; for every person summoned to an assize, 100 merks. The other statutes will be found in the Scots Acts, voce

"Lawburrows."

(n) Thomson, 7 March 1815, F.C.; Calder, 24 Feb. 1841, 3 D. 615.

(0) Taylor, 25 June 1829, 7 S. 794. The farther evidence in these cases seems to have been produced in the form of precognitions taken before a magistrate.

does by presenting a note of suspension if he has not been imprisoned, and one of suspension and liberation if he is in prison. (p) This note may be passed (so as to try the question) on such caution as the Court think fit, there being no rule on the subject. Where the defender offers to prove that the application was made maliciously and without probable cause, the Court may dispense with any caution.(g) What it is necessary to show before the warrant will be quashed, appears to be a good deal. In the most recent case in the Court of Session it was held that the warrant could not be set aside unless the defender proved that the application was made both maliciously and without any probable cause.(r) This makes the power of setting aside the warrant almost useless, because malice is very difficult to prove, and it may be doubted whether the decision did not proceed on stricter views than the policy of the various statutes required. Under the statutes it is doubtless imperative to issue the warrant in the ordinary case upon the oath, and it is almost essential to do so if the statutes are to be carried out, because if time were given, the evil to be prevented might be done; but it does not follow that after caution has been found, and inquiry can calmly be made, the obligation to find caution should be continued in perpetuity, though it be shown that the alarm was groundless. (s) When it is proved that the warrant is illegally taken out, the pursuer is liable in damages.

(p) Smith v. Baird, 26 Jan. 1799, M. 8043.

(9) Gadois v. Baird, June 1856, 28 Jurist, 682.

(r) Brock v. Rankine, 5 June 1874, 1 R. 991; Randall v. Johnston, 28

June 1868, 40 Jurist, 554.

(8) From the old records of the Sheriff Court of Aberdeen (15031508) it appears that Lawburrows were then granted "during ye will of ye Sheriff."