All disputes between apprentices to whom the Act applies, and their masters, arising out of or incidental to their relation as such, may be heard and determined in the Small Debt Court (§§ 5 and 14). In such disputes the Sheriff has the same powers as if the dispute were between employer and workman (which have been explained in the preceding article), and has, in addition to them, the following powers:(1) to order the apprentice to perform his duties during the apprenticeship; and (2) when he rescinds the contract, to order the whole or any part of the premium to be paid back. If the apprentice do not fulfil an order to perform his duties, he may, on the lapse of not less than a month from its date, be ordered to be imprisoned for a period not exceeding fourteen days. The order and imprisonment may apparently be renewed from time to time (§ 6). If there be a cautioner for the apprentice, he may be summoned to attend the hearing, and ordered to pay damages not exceeding the limit (if any) to which he is liable under his bond (§ 7). When the apprentice fails to appear in England, he may be apprehended under the "Summary Jurisdiction. Act" (11 and 12 Vict. c. 43), and power to issue a warrant to the same effect is conferred on the Sheriff in the Small Debt Court (§§ 9 and 14).

The Small Debt Court has its usual power of directing any payment to be made by instalments, but it has (in addition) a power to rescind or vary the order from time to time. As the Act is worded, it would look as if the Sheriff had power to cancel the order altogether, but it is probably only meant that he should have power to alter the part relating to the instalments (§ 9).

COMMON LAW PROCEEDINGS.

5. Ordinary Remedies.-It will be observed that the Act does not directly apply to all possible proceedings which may be taken between employers and workmen. It does not apply (1) to actions between employers and workmen or apprentices, brought at first in the Debt Recovery Court; (2) to actions between employers and apprentices brought at first in the ordinary Court; and (3) to actions between employers and workmen or apprentices brought in the Small Debt Court, when the sum claimed is between £10 and £12. It will be impossible however to allow the complainer to defeat the Act by simply selecting his court, and it will therefore be the duty of the Sheriff, (unless both parties concur in asking him to allow the action to remain), to remit it (whenever it is competent to do so) from the Court where it has commenced to the Court which will give the case the benefit of the Act. Thus, actions between employers and workmen brought in the Debts Recovery Court, or for more than £10 in the Small Debt Court, will have to be sent to the ordinary roll, whereever doing so will cause the Act to apply. Proceedings between employers and apprentices regarding disputes to which the Act applies, brought either in the ordinary Court, or in the Debts Recovery Court, will have to be remitted, in like manner, whenever it is competent, to the Small Debt Court.

Where the case is such that no order of the Court can bring it under the Act, it must of course proceed at common law. With regard to all properly civil actions between masters and servants and apprentices, to which the Act

does not apply, there is nothing in it to interfere with them in any way.

6. Summary Remedy.-There is one common law proceeding, namely, that by which the contract of service can be enforced under the penalty of summary imprisonment, which it is doubtful whether the Act has left competent. The framers of the Act have not contemplated the competency of any such proceeding being taken at common law, and have not expressly forbidden it, although such a proceeding is plainly quite alien to its spirit. The description of the proceeding contained in the two succeeding paragraphs, as given in the first edition of this work, is allowed to remain in the meantime, although the use of the proceeding is not to be recommended, and any person endeavouring to use it must remember that its purpose may not be attained, as one or other of the alternative remedies allowed by the Employers and Workmen Act may possibly be awarded in place of the special remedy sought.

"When a servant deserts his service, it is competent to apply to the Sheriff for a warrant ordaining him to return to his service, and to find caution to remain there till the end of his engagement, under the penalty of imprisonment until the fulfilment of the warrant. The power applies to the case of a workman leaving before he gives the period of notice required in his employment; (2) or of a workman leaving before the time which he has engaged to serve ;(a) or of an apprentice leaving before the expiry of his apprenticeship.(b) The warrant, however, can be granted

(z) Reid v. Raeburn, 4 June 1824, 3 S. 104; Hamilton v. Outram, 5 June 1855, 17 D. 798.

(a) Gentle v. M'Lellan, 9 July 1825, 4 S. 162.

(b) Cameron v. Murray, 8 March 1866, 4 Macph. 547.

only to make the workman return and serve out the period of his service; it cannot be granted in general terms to make him fulfil his engagement, because he may have engaged to do other things besides serving in the manner to which his situation binds him, and such other stipulations cannot be enforced in this way.(c) Further, the warrant is applicable only to the case of desertion of service. In the case of a servant failing to enter after engaging, it is competent to present a petition to have him ordained to enter the service, and to find caution to remain there, but such a petition is conducted and enforced in the same way as any other petition ad factum præstandum.(d)

"The petition sets forth the contract of service and the date of desertion; and the prayer asks the Sheriff (on the complaint being admitted or proved) to ordain the servant to return, and to grant warrant to imprison him till he find caution to return and continue in service till the end of his engagement. Usually the first step (when prayed for in the application) is to grant a warrant to apprehend the defender and bring him up for examination; but it is also competent to proceed by serving the complaint in the usual manner. When the defender is brought up for examination, if he admits the engagement and desertion, the warrant to imprison may be granted. If he deny either of those things, both parties are allowed a proof, and the defender may be liberated, with or without caution to abide the issue of the farther proceedings, as the Sheriff may think fit. At

(c) Stewart v. Stewart, 21 May 1833, 11 S. 628; Wright v. M'Gregor, 28 June 1857, 2 S. 855.

(d) Fulk v. Anderson, 1 June 1843, 5 D. 1096. The caution here was asked only as to entering the service,

but apparently this was a mistake, because throughout the discussion the case was treated as if the servant had been asked to find caution to enter and remain in the service.

だ

the proof the evidence should be taken in the manner usual in civil causes, and the Sheriff give his decision at once. When the complaint is intended to be served, it is competent to insert in the order for service a certification that if the defender do not appear the warrant to imprison will be granted; and on his failing to appear it may be granted accordingly. If he appear after service the case should be conducted in the same way as if he had been apprehended. When the warrant is granted it is not usual to give time to find the caution, as that might defeat the object. The sufficiency of the caution is entirely in the Sheriff's discretion, and he may limit the amount in any manner, or even, in case of hardship, accept the servant's own bond. The whole proceedings are summary, and if the Sheriff grants the warrant erroneously, the redress is by suspension in the Court of Session." (e)

Section XVIII.-MEDITATIO FUGE.

1. Debt on which Warrant Compe- | 5. Oath of the Creditor.

tent.

2. What Persons may be Apprehended.

6. Granting Warrant of Apprehen

sion.

3. What Sheriff may issue the War-7. Examination of the Debtor.

rant.

4. Form of Application.

8. Proof.

9. Order to find Caution.

The Meditatio Fuga Warrant is issued on the application of a creditor, who swears to the verity of his debt, and also to his belief that the debtor means to leave Scotland;

(e) See Cameron v. Murray, ut supra, where all the authorities were examined and the proceedings fully

discussed; and see also Fraser on the Law of Master and Servant, 2d ed., pp. 40 and 450.