Crown. In a work which extends only to practice in civil causes it is unnecessary to treat of his office. There are extremely few civil cases in which his intervention is required, and his functions in regard to these will be noticed in connection with them.

9. Officers of Court.-Sheriff-Officers are the persons by whom writs are served and executions carried out in the Sheriff Courts. They are admitted by the Sheriff, to whom they apply by a petition, which is usually remitted to two or more of the procurators to examine them as to their qualifications. In some counties the Sheriff conducts the examination himself. On the applicant being found duly qualified he is admitted, and the oath de fideli administered. He then requires to find caution for the due performance of his office. Should the cautioners die or resign, their place must be immediately supplied. Sheriff-Officers continue to act during their good conduct; and for misconduct may be dismissed or suspended by the Sheriff.

A Sheriff-Officer can in civil matters act only within the jurisdiction of the Sheriff who has admttted him, except in Small Debt actions, where he may serve warrants in other counties after they have been endorsed by the Sheriff-Clerk in terms of the Small Debt Act.(q) Messengers-at-Arms may also (it is said) execute writs in the Sheriff Court,(r) but it has been doubted whether they can act in Small Debt Sheriff-Officers may in turn act in some cases in

cases.

writs issuing from the Court of Session. (8)

Some regulations as to the admission of Sheriff-Officers, which have been adopted in various counties, will be found in the Appendix.(t)

(2) 1 Vict. c. 41, § 34.

(r) See Finlayson v. Innes, 28 Feb.

1803, 4 Paton 443.

(8) 31 and 32 Vict. c. 100, § 19.

(t) Appendix, part ix.

CHAPTER II.

OF THE MATTERS IN WHICH THE SHERIFF COURT HAS JURISDICTION.

1. Introductory.-The simplest description of the extent of the jurisdiction of the Sheriff Courts is to say that it extends over every kind of right, with only two important exceptions. There being in Scotland no recognised separation between law and equity, there is no exception to the jurisdiction on that ground. The exceptions arise (1) in questions as to the title to heritable property; and (2) in questions as to status and legitimacy, depending on the validity or invalidity of any alleged marriage, divorce, or separation. There are other important exceptions to the jurisdiction, which arise from its being incompetent to ask for certain remedies in the Sheriff Court, and these will be considered in the following chapter. In the meantime it is necessary to consider more in detail the rights on which the Sheriff Court can decide.

2. Moveable Rights. In rights relating to moveable or personal property the jurisdiction of the Sheriff is unlimited. There may be certain remedies which he cannot give, but there is no question as to moveable right which either its nature or amount prevents him from deciding. Thus, he decides in all questions arising out of mercantile transactions, -sales, loans, bills of exchange, partnership accounts, executory contracts, contracts of service, contracts with carriers, and the like; and that whether the question is as to the right to specific implement of an obligation, or as to the right to damages for non-implement.

3. Actions of Damages.-Among the actions of damages for breach of contract which the Sheriff Court can entertain, are actions of damages for breach of promise of marriage, there being here no question raised as to status. Other actions on breach of contract do not require to be particularised. In addition to such actions, the Sheriff may try questions as to the right to damages for delict, such as arise in actions of damages for slander and libel, seduction, assault, or any injury to person or property, whether accidental or intentional.

4. Privative Jurisdiction in Moveables. Where the value of the action does not exceed £25 sterling, the Sheriff Court has a privative jurisdiction. It is incompetent to bring such an action in the Supreme Court, (a) or (except to the

·

(a) 30 Geo. III. c. 112, § 28:"All causes not exceeding the value of twenty-five pounds sterling shall, from and after the passing of this Act, be carried on in the first instance before the inferior Judges in the manner directed and with the exceptions specified in an Act passed

in the third session of the second Parliament of H. M. King Charles the Second, intituled, Act concerning the Regulation of the Judicatories." The Act here referred to (1672, c. 40, § 16) had enacted "to the effect, the Lords of Council and Session may be in better capacity to discuss the

D

limited extent permitted by the Small Debt Act) to appeal such an action from the Inferior Court. (b)

5. Heritable Rights.-As already pointed out, the Sheriff Court cannot decide on title to heritable property, however small in value the property may be. When disputes arise in regard to heritage, the power of the Sheriff Court is confined to that of regulating the interim possession. For this purpose it may pronounce what are called possessory judgments;(c) and those are founded upon the state of possession as it has existed for the preceding seven years. This state of possession the Sheriff can protect from interruption ; or, if it had been disputed, may regulate. Thus, for example, the Sheriff secures from summary interruption a party who has been in peaceable possession of an heritable subject for seven years, though he has no ex facie title, provided he allege the existence of a right;(d) but he cannot decide the question whether a title is good, or, if there be two titles produced, which of them is the better. In such cases it is his province to regulate only the possession till the dispute is settled by the competent Court, and he cannot look at the titles for any other purpose than that of assisting him to decide on the

processes which come before them, not being overburdened with small and inconsiderable causes, that all causes not exceeding the value of Two hundred merks Scots [about £11, 2s. 6d.] be in the first instance carried on before the inferior Judges." The exceptions in this Act (so far as not in desuetude) related to the privileges of the College of Justice, and have been repealed (infra, cap. iv. art. 7). The point whether an action does or does not exceed the value of £25 is

considered under Appeals to the Court of Session.

(b) 16 and 17 Vict. c. 80, § 22. (c) "Possessory actions are those in which the point of right is not directly concerned, but barely that of possession." Erskine's Institute, iv. i. 47.

(d) Bridges v. Elder, 5 March 1822, 1 S. 417. For the sake of keeping the peace, he might prevent even an intruder from being forcibly dispossessed.

possessory point. (e) And it is only if a title be ex facie clear that he can look at it even for this purpose. If the title be ambiguous, the Sheriff must sist the process till the ambiguity be cleared up in the Court of Session.(g) In a question between a party having a title and a party alleging none, the Sheriff may dispossess the latter, though his possession may have been longer than the seven years, there being no question of title involved. (h)

6. Nuisance and Servitudes.-There are two matters relating to heritable rights in which the Sheriff Courts have by special statute full jurisdiction. These are matters of nuisance arising from the use of real property, and questions of servitudes. In regard to these they are entitled to decide, not merely in so far as regards the question of possession, but also in regard to the question of right. Thus, where anything is complained of as a nuisance, the Sheriff Court is not precluded from ordering its discontinuance upon proof that it has existed for more than seven years; and in the same way in regard to servitudes, it is not limited to considering the state of possession for the preceding seven years, but it may enter into all such questions as those affecting title, immemorial possession, or prescriptive possession, requisite for the decision of the question of absolute right, and it may pronounce decisions affecting the right itself. (¿)

(e) Maxwell v. The Glasgow and South-Western Railway Co., 16 Feb. 1866, 4 Macph. 447; Johnston v. Murray, 5 March 1862, 24 D. 709; Liston v. Galloway, 3 Dec. 1845, 14 S. 97.

(g) Cruickshank v. Irving, 23 Dec. 1854, 17 D. 286; Lowson's Trustees

v. Cramond, 16 Nov. 1864, 3 M. 53. (h) Nisbet v. Aikman, 12 Jan. 1866, 4 Macph. 285.

(i) 1 and 2 Vict. c. 119, § 15; Brown v. Currie, 1 Feb. 1843, 5 D. 463; Thomson v. Murdoch, 21 May 1862, 24 D. 975.