services to a ship or boat, before the Sheriff resident at or near where it is lying, or the first port to which it is taken. (6) The Sheriff may call to his assistance any person conversant with maritime affairs as assessor, or may refer the claim to such a person as umpire. The Sheriff must determine the dispute within forty-eight hours after it has been referred to him, which must mean (if a petition has been requisite) after the respondent has appeared. If the Sheriff refer it to an umpire, the umpire has forty-eight hours from his appointment in which to determine the dispute. (p) Provision is made in the leading Act for the umpire's remuneration, for calling for the production of documents, and administering oaths.(q) It also has provisions for enforcing the award where the receiver's assistance is requisite, and also for apportioning it. (r)

The proceedings in the case of an appeal are not well defined. The party must give notice of his intention within ten days, and take his appeal within twenty.(s) When this is done a certified copy of the proceedings must be transmitted, along with a certificate by the Sheriff of the gross value of the article respecting which salvage is claimed.(t) As the proceedings will not (unless the parties have consented to it) contain a record of the evidence,(u) it must have been intended that the Court of Session shall take its own course as to informing itself of the circumstances. But where both parties agree, it would seem, however, not to be incompetent for the Sheriff to have the proof recorded in short-hand or otherwise as in civil causes;

(o) 1854 Act, ? 460.

(p) 1854 Act, ? 461. The Sheriff or umpire has power, however, to extend the time by writing under

his hand.

(g) 1854 Act, 22 462, 463.
(r) Ib. 22 466 to 470, incl.
(8) Ib. ¿ 464.
(t) Ib. 2 465.

(u) Ib. § 536.

and in cases where the sum in dispute exceeds £50, it might be wise for the parties to take the precaution of asking to have this done.

If the claim exceeds £200, it must, unless the parties consent to its being tried in the Sheriff Court, be taken to the Court of Session. If the sum awarded there is less, the claimant gets no costs, unless the Court certify the case to be a fit one to be tried in a superior court.(v)

Section XVI.-ACTION OF MAILLS AND DUTIES.

An action for the payment of rents used to be called an action of maills and duties. The action is an ordinary one, commencing by summons. If the pursuer be in possession of the estate, whether as proprietor or as adjudger, or under any title which by law gives him the rents, the action is directed against the tenants only; but where the person entitled to the rents is not legally in possession, he must call the person who is in such possession as defender, as well as the tenants. Should a question of heritable title arise, the action must be sisted; but tenants cannot object to the title of the person from whom they derive their right, or to that of his heir, provided either were infeft. If a third party appear in the process, having also an infeftment, the pursuer must prove that he or his author has been in possession of the rents for seven years immediately preceding.(w)

The action sets forth the pursuer's title and the names and designations of the tenants, with their respective tenures, and concludes for payment of the rents. It may

(v) 1854 Act, § 460.

(w) Hunter on Landlord and Tenant, 3d ed., vol. ii. p. 334.

conclude not only for the arrears, but for rent due at a coming term, that term being first come and bygone.(x)

1. Employers and Workmen Act, 1875.-The proceedings between master and servant, or apprentices, being actions founded on contract, are in general actions of the ordinary kind, but in certain cases the powers of the Sheriff in dealing with them have been considerably enlarged by the Employers and Workmen Act of 1875. This Act may be popularly described as an Act for giving to the Sheriffs in the cases to which it applies the power of arbiters, so that they may in the particular case before them settle (according to law) the whole dispute between the parties. The Act makes no change in the ordinary forms of process, except indirectly where it may be necessary to take some additional step in order to give effect to its provisions. As the Act is one of a civil nature and of a remedial description, it would appear to be not absolutely necessary for either party to set it forth or plead it specially. It would rather seem to be

(2) Woodward v. Wilson, 10 March 1829, 7 S. 566.

for the Court to apply it to the cases which fall under it, without any absolute necessity for its being expressly founded on by either party. (y)

2. Ordinary Court (Workmen).—The Act applies to all proceedings before the Sheriff's ordinary Court in relation to any dispute between an employer and a workman, arising out of or incidental to their relation as such (§§ 3 and 14). The expression "workman," however, is used in the Act in a limited meaning. It does not include seamen (§ 13), who are left to be dealt with under the Merchant Shipping Acts, under which the proceedings are of a penal character. Neither does it include domestic or menial servants, who are left to the common law. It includes "any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, has entered into or works under a contract with an employer." The contract may be made before or after the passing of the Act. It is also provided that the contract may be "express or implied, oral or in writing," which puts an end to the difficulty which there used to be in defining to what sorts of contract the old Master and Servant Acts applied. Lastly, it is provided that the contract may "be a contract of service or a contract personally to execute any work or labour," which puts an end to another difficulty of the same kind (§ 10).

When there is a dispute in the ordinary Court, to which the Act applies, the powers of the Court extend to the three following particulars (more fully explained in the Act itself)-It may adjust and set off all claims and counter

(y) 38 and 39 Vict. c. 90 (printed in Appx. Part II. Chap. IV.)

claims, whether liquid or illiquid; (2) it may rescind the contract, apportion wages, and award damages; and (3) in place of giving damages, it may, if both parties be willing appoint security to be given for the performance of the contract (§ 3).

In the ordinary Court, there being no alteration made on the ordinary forms of process, the proceedings may commence by summons or petition, as may be competent according to the present common law practice. There will be a record and proof as usual, and the powers of appeal will remain unaltered.

3. Small Debt Court (Workmen).-The Act applies to disputes between employers and workmen brought in the Small Debt Court, where the sum claimed does not exceed £10. In such actions the Sheriff may exerise the powers conferred by the Act on him in the ordinary Court, provided that he do not make any order for the payment of any sum exceeding £10 (exclusive of costs), and shall not require security for any larger sum (§4). The proceedings will, as at present, commence in general by summons, but the Act provides that they may also commence by petition, and authorises the Sheriff to pronounce in the Small Debt Court all orders necessary for carrying it out (§ 14).

4. Small Debt Court (Apprentices).-The apprentices to whom the Act applies are those apprenticed to the business of workman (as defined by it) upon whose binding either no premium or a premium less than £25 has been paid. It also applies to apprentices bound under the provisions of the Acts relating to the relief of the poor (§ 12). It does not apply to apprentices to sea service (§ 13).