shall be disputed, and a proof shall be allowed and taken according to the present practice, the Sheriffs or other Judges in the said courts shall, in their judgment, proceeding upon such proof, distinctly specify the several facts material to the case

which they find to be established by the proof, and express how far their judgment proceeds on the matter of fact so found-or on the matter of law-and the several points of law which they mean to decide.

16 & 17 Vict. c. 80.-An ACT to facilitate procedure in the Sheriff Courts in Scotland-15th August 1853.

Whereas an Act was passed in the first year of the reign of Her present Majesty, entitled An Act for the more effectual recovery of Small Debts in the Sheriff Courts, and for regulating the establishment of Circuit Courts for the trial of Small Debt causes by the Sheriffs in Scotland (7 Will. IV. & 1 Vict. c. 41); and another Act was passed in the Session of Parliament held in the first and second years of the reign of Her present Majesty, intituled An Act to regulate the constitution, jurisdiction, and forms of process in Sheriff Courts in Scotland (1 & 2 Vict. c. 119); And whereas it is expedient to facilitate procedure in the Sheriff Courts in Scotland, and to make further provision for the cheap and speedy administration of Justice in the said Courts: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

PROCEEDINGS IN ORDINARY CAUSES.

1. With respect to cases in the Sheriff Court, other than those provided for by the first-recited Act, as extended by this Act, be it enacted as follows:

[Short form of summons.]—The summons shall be in the form, as nearly as may be, of the Schedule (A.) annexed to this Act, and such short form shall be equally effectual to all intents and purposes, including arrestment on the dependence where the summons contains a warrant to arrest in terms of such schedule, as the forms at present in use.

2. [Decree in absence. Provision for reponing.]—Where no appearance shall be entered for the defender, the Sheriff may, at any court held after the day of compearance, give decree in terms of such summons, in like manner as at present, where no appearance is made for the defender, and such decree shall be in all respects equivalent to a decree in absence obtained under the forms at present in use: Provided always, that the defender may obtain himself reponed against such decree, whether extracted or not, at any time before implement has followed thereon, or against such

part thereof as may not have been implemented, by lodging with the sheriff-clerk a reponing note in the form in Schedule (B.) annexed to this Act, and consigning therewith the sum of expenses decerned for, a copy of which note shall at the same time be delivered or transmitted through the post-office to the pursuer or his agent in the action, and a certificate by the sheriff-clerk that such note has been lodged shall operate as a sist of diligence; and where such note shall have been lodged and consignation made as aforesaid, the Sheriff shall pronounce a judgment reponing the defender, and shall also appoint the consigned money to be paid over to the pursuer, unless special cause be shown to the contrary, and the cause shall thereafter proceed in all respects as if appearance were made therein, in manner hereinafter provided, of the date of such judgment: Provided always, that where a charge has been given, or any step of diligence has been taken, on the decree, prior to the application to be reponed, it shall be competent to the Sheriff in the course of the proceedings in the cause to decern in favour of the pursuer for the expense of such charge or diligence, or such part thereof as may be just.

Condescendence and

3. [Procedure where defender enters appearance. defences to be lodged.]—Where the defender intends to state a defence, he shall enter appearance by lodging with the sheriff-clerk, at latest on the day of compearance, a notice in the the form of Schedule (C.) annexed to this Act; and on the first court-day thereafter, or on any other court-day to which the diet may be adjourned, not being later than eight days thereafter, the Sheriff shall hear the parties in explanation of the grounds of action and the nature of the defence to be stated thereto, and if satisfied that no further written pleadings are necessary he shall cause a minute in the form of the schedule (D.) annexed to this Act to be written on the summons, setting forth concisely the ground of defence, which minute shall be subscribed by the parties or their procurators, and the Sheriff shall thereupon close the record by writing under the said minute "record closed," and signing and dating the same; but if the Sheriff shall be satisfied that the record cannot properly be made up without condescendence and defences, he shall pronounce an order for the same; and in such event the pursuer shall, within six days thereafter, lodge with the sheriff-clerk a condescendence setting forth articulately, and as concisely as may be, without any argument or unnecessary matter, the facts necessary to found the conclusions of the summons which he avers and is ready to prove, together with a note of pleas in law; and the defender shall, within ten days after the lodging of such condescendence, lodge his defences, setting forth articulately, his answers to such condescendence, and also, where necessary, setting forth articulately, under a separate head, any counter-statements necessary for his defence which he avers and is ready to prove, and there shall be appended to such defences a note of the defender's pleas in law, and such defences shall be framed as concisely as may be, without any argument or unnecessary matter.

4. [Record to be made up and closed.]-The sheriff-clerk shall, as soon as defences are lodged, transmit the process to the Sheriff, who shall consider the same, and shall as soon as may be, and at latest within six days after the date of lodging the defences, appoint the parties or their procurators to meet him, and shall at such meeting, if dilatory defences have been stated, dispose at once, where possible, of such dilatory defences, or may reserve consideration of them till a future stage of the cause; and unless where the pursuer is willing to close on summons and defences, the Sheriff may, if he thinks fit, order one revisal of the condescendence and defences respectively, which revisal shall be made upon the original papers, unless the Sheriff, for special cause assigned, shall direct to the contrary; and as soon as revised defences are lodged the sheriff-clerk shall transmit the process to the Sheriff, who shall thereupon appoint the parties or their procurators to meet him as soon as may be, and at latest within six days after the date of the lodging of the revised defences; and at such meeting after the lodging of the defences, or the revised defences, as the case may be, or at an adjourned meeting, if the Sheriff has seen fit to adjourn (which he is hereby authorized to do, where necessary, but for no longer period 'than eight days), the Sheriff shall allow the pursuer or his procurator to put upon record, in concise and articulate form, where this has not been already done, his answers to the defender's statement of facts, or a simple minute of denial where that shall be deemed by the Sheriff to be sufficient, and shall allow each party to adjust his own part of the record, and shall strike out of the record any matter which he may deem to be either irrelevant or unnecessary; and the record shall then be closed by the Sheriff writing upon the interlocutor sheet the words "record closed," and signing and dating the same.

5. [After record is closed Sheriff to hear parties or to appoint diet for proof, and to dispose of case.]-After the record is closed the Sheriff shall hear the parties or their procurators upon the merits of the cause, and upon their respective pleas, or, where he deems proof to be necessary, shall appoint a diet for proof on an early day, and shall hear the parties or their procurators after such proof is led; and after such hearing, or such proof and hearing, as the case may be, the Sheriff shall pronounce judgment with the least possible delay: Provided always, that it shall be competent to the Sheriff, on the written consent of both parties, to dispose of the cause upon the papers without further statement or argument.

6. [Periods for lodging papers peremptory; but prorogations may be granted of consent, and once on cause shown.]—Where any condescendence or defences, or revised condescendence or revised defences, or other paper, shall not be given in within the periods prescribed or allowed by this Act, the Sheriff shall dismiss the action, or decern in terms of the summons, as the case may be, by default, unless it shall be made to appear to his satisfaction that the failure to lodge such paper arose from unavoidable

or reasonable causes, in which case the Sheriff may allow the same to be received, on payment of such sum in name of expenses as he shall think just: Provided always, that the periods appointed for lodging any paper or for transmitting any process to the Sheriff, or for closing a record, may always be once prorogated by the Sheriff without consent on special cause shown, and may always be prorogated by written consent of parties, with the approbation of the Court; and in every interlocutor prorogating on special cause shown the time for lodging any paper the nature of such cause shall be set forth, and a definite time shall be therein fixed within which the paper is to be lodged.

7. [Provision for causes commenced by petition.]-In all applications before the Sheriff which are at present commenced by petition, and are not otherwise regulated by this Act, the petition shall be as nearly as may be in the form of Schedule (E.) annexed to this Act; and thereafter the procedure under such petition shall, as nearly as may be, be the same as herein before provided in regard to ordinary actions.

8. [Procedure in Multiplepoindings.]-In actions of multiplepoinding, the party raising the summons shall set forth in the body thereof who is the real raiser of the action; and the Sheriff shall, at the first calling of the cause, where no defences are stated, or where defences are stated and repelled at the first calling thereafter, pronounce an order for claims within a short space; and it shall be competent for any number of parties whose claims in such action depend upon the same ground to state such claims in the same paper; and as soon as the parties who shall appear and claim an interest in the fund shall have lodged their claims, or had opportunity allowed them for doing so, the Sheriff shall appoint the parties or their procurators to meet him; and at such meeting he shall allow each party to adjust his own part of the record, and to meet the averments of any other claimant or claimants so far as necessary, and the procedure at such meeting, and in the after progress of the cause, shall be as nearly as may be the same as is hereinbefore provided with reference to ordinary actions after defences have been lodged.

9. [Short forms of execution provided.]-Every execution of a summons, and every execution of service of a petition, shall be written at the end of the summons or petition itself, and where necessary on continuous sheets, but not on a separate paper; and such execution shall be in the form, or as nearly as may be in the form, of Schedule (F.) annexed to this Act, which form shall be equally valid and effectual in all respects as the longer form of execution at present in use.

10. [Written proofs abolished; and proofs how to be taken. Absent or aged or infirm witnesses may be examined on commission. Remits may be made to person of skill, and, if of consent, his report shall be final.]—Where proof shall be allowed, a diet of proof shall be appointed, at which the evidence shall be led before the Sheriff, who shall with his own hand take

a note of the evidence, setting forth the witnesses examined, and the testimony given by each, not by question and answer, but in the form of a narrative, and the documents adduced, and any evidence, whether oral or written, tendered and rejected, with the ground of such rejection, and a note of any objections taken to the admission of evidence, whether oral or written, allowed to be received; which note of the evidence shall be forthwith lodged in process, and the sheriff-clerk shall mark the documents admitted in evidence, and also separately, and documents tendered and rejected; and the diet of proof shall not be adjourned, unless on special cause shown, which shall be set forth in the interlocutor making the adjournment; and the proof shall be taken as far as may be continuously, and with as little interval as the circumstances or the justice of the case will admit of; and the note of the evidence given by each witness shall be read over to him by the Sheriff, and signed by the witness (if he can write) on the last page in open court before the witness is dismissed: Provided always, that in the event of the Sheriff being unavoidably prevented from taking such notes with his own hand, he shall dictate the same to any competent person he may select: Provided always, that it shall be competent to the Sheriff, where any witness or haver is resident beyond the jurisdiction of the court, or by reason of age, infirmity, or sickness is unable to attend the diet of proof, to grant commission to any person competent to take and report in writing the evidence of such witness or haver; provided also, that it shall be competent to the Sheriff to remit to persons of skill or other persons to report on any matter of fact, and where such remit shall be made of consent of both parties the Sheriff shall hold the report to be final and conclusive with respect to the matter of such remit.

11. [Certified copy interlocutor of proof to be warrant for citing witnesses and havers, and to be operative, by simple indorsation, in other counties.]—When a diet of proof shall be appointed by the Sheriff, a copy, certified by the sheriff-clerk, of the interlocutor fixing such diet, or of that portion of such interlocutor which relates to that matter, shall be a sufficient warrant to any sheriff-officer in Scotland (acting within his own county) to cite witnesses and havers, at the instance either of the pursuer or defender, to attend such proof; and such warrant shall have the same force and operation in any other county as in the county in which it was issued, the same being, in every case in which it is executed in another county from that in which it is issued, indorsed by the sheriff-clerk of such other county, who is hereby required to make and date such indorsation; and the citation and execution thereof shall be in the form of Schedule (G.) annexed to this Act; and if any witness or haver duly cited on a citation of at least forty-eight hours shall fail to appear, he shall forfeit and pay a penalty not exceeding forty shillings, unless a reasonable excuse be offered and sustained by the Sheriff, for which penalty decree