Section XXVI.-SUSPENSION.

Suspensions of the decrees obtained under the summary diligence system in use in Scotland are competent to a limited extent in the Sheriff Court. Where a charge has been given on any decree of registration (which has proceeded upon a bond, bill, contract, or other form of obligation, registered in any Sheriff Court books, or in the books of Council and Session, or other competent books), for payment of any sum of money not exceeding the sum of twenty-five pounds of principal, exclusive of interest and expenses, a suspension may be brought in the Sheriff Court. (h) It will be observed that the power here is very limited; that it applies only to the case of a charge for payment having been given, and of the amount charged for not exceeding twenty-five pounds, exclusive of interest and expenses; and that no mention is made of any power of liberating from prison where the charge has already been followed by imprisonment.

The application must be made to the Sheriff Court of the domicile of the person charged. It cannot be made except on sufficient caution; (i) but suspension seems always to be competent on that being found, although in most other kinds of suspensions consignation is requisite, either at common law or under the obligation on which the decree has followed. Before the sist can be granted the caution must

be found for the sum charged for, and for the interest and expenses to be incurred in the Sheriff Court. On the caution being found the Sheriff has power to sist execution against the petitioner, to order intimation of the petition, and thereafter to proceed with the petition in the same manner as in the case of other summary petitions.

The sist should be immediately intimated to the charger. If he does not reside within the county the order should be endorsed by the Sheriff-Clerk of the county where he does reside. If he lives out of Scotland, the intimation should be made to the mandatory, or other person in this country at whose instance the diligence is being carried out, for, although this may not be complete legal intimation, it would not be safe after this for the holder of the decree to go further.

Appeals from Sheriff-Substitute to principal Sheriff may be taken in suspensions in the usual way, but there is a provision that the Sheriff's decision on any preliminary objection to the competency or regularity of the petition shall be final. This provision, however, it will seldom be necessary to found upon, because nearly everything it could apply to is more stringently provided for by the provision of the Act of 1853,(k) prohibiting all review of decisions in causes not exceeding the value of twenty-five pounds.

Section XXVII.-TAXATION OF AGENTS' ACCOUNTS,

The Act of Sederunt of 1839 provides simple machinery for taxing accounts between agent and client in certain (k) 16 and 17 Vict. c. 80, § 22.

cases.

The provision applies only to accounts incurred in reference to actions, and where the client, moreover, does not dispute his liability. The agent or client may present a summary application to the Sheriff before whom the cause depends or depended, for authority to have the account taxed. This is intimated on a service of at least seven days, and then the account is remitted to the auditor and taxed; and each party can object to the taxation, or appeal against the Sheriff's judgment as in an ordinary action. On the amount of the account being ascertained, decree for it may be given, extracted, and enforced in the usual way. (1)

Section XXVIII.-ACTION OF TRANSFERENCE.

The action of transference is the means by which the representative of a deceased pursuer or defender, who will not sist himself, is forced to appear and pursue or defend the action to which his ancestor has been a party. The summons sets forth what the original action was, and the capacity in which the person called represents the deceased, and concludes that the representative, in the case of a pursuer, shall be ordained to appear and proceed with the cause, and, in the case of a defender, shall be decerned against in terms of the original conclusions. The action can be raised in the Sheriff Court only when the Sheriff before whom the original cause depended has jurisdiction over the representative also.(n) If this Sheriff has no jurisdiction over him, the action must be raised in the Court of Session. It would be

(1) A. S. 10 July 1839, ? 110.

(n) See Cameron v. Chapman, 9

March 1838, 16 S. 907, and authorities there cited.

of no avail to raise it before the Sheriff to whose jurisdiction the representative was liable, because the original action. could not be remitted to that Court.

In the action of transference, the only question discussed is the competency of transferring; and that, when disputed, is disposed of as in an ordinary action. Should the Court

decide to transfer, the action of transference is remitted to, or conjoined with, the original action, and that is proceeded with. Should the transference be in the Court of Session, the original action must be removed there by appeal ob contingentiam.

Section XXIX.-TUTORS AND CHOOSING CURATORS.

1. Choosing Curators.

2. Curatorial Inventories.

3. Act of Curatory.

4. Tutorial Inventories.

1. Choosing Curators.-Where the father of a minor above the age of puberty has died without naming curators, the minor may choose them. In order to do this the minor raises a summons (or edict) of curatory, in which he or she calls two of the nearest of kin on the father's side, and two on the mother's side, and all others having interest, to hear and see the curators chosen and the curatorial inventories given up.(0) The next of kin are named individually, and cited in the usual manner; and the "others having interest" are cited edictally at the market cross of the head burgh of the county within which the minor's lands lie, or, if he has no lands, at the head burgh of his own domicile. (p) The

(0) 1555 c. 35; Wallace v. Ken- (p) 1555 c. 35. nedy, 29 July 1674, M. 16,290.

summons is brought in the Sheriff Court within whose jurisdiction the minor resides; and if it has to be served on persons beyond the jurisdiction it must of course be duly indorsed. (q) If the next of kin are out of Scotland, application must be made to the Court of Session. (r) The summons proceeds on an induciæ of nine days. On the summons being called in Court the minor appears and makes choice of one or more parties to be his curators, whose appointment he may make simple or joint, with a sine quo non or a quorum, conditionally or unconditionally. (s) The curators then accept the office (in writing), and take the oath de fideli administratione. If they be not present, a commission may be granted to take their acceptance and oath. Usually the next of kin do not appear, but when they do appear the proceedings are the same.

2. Curatoral Inventories.-The next step is for the curator to give up an inventory of all the property of the minor. If the next of kin have appeared, they appoint a delegate to concur with the curator in making up the inventory, and when they do not appear the Court appoints a delegate to concur for them. On the inventory being made up, three copies are prepared and lodged by the curator. One copy

is set aside for the next of kin, the second is recorded in the books of Court, and the third is given back to the curator.

3. Act of Curatory.-When these things are completed an act of curatory is extracted, and the curator is then fully of such of the next of kin as are abroad; Buchan, 7 June 1873, 11 Macph. 662.

(9) Burnet v. Burnet, 1685, M. 16,306; 1 and 2 Vict. c. 119, 24 (r) This seems unavoidable from the want of jurisdiction. The Court of Session may, however, (in the application) dispense with the citing

(s) Fraser on Parent and Child, by Cowan, p. 358.