In case of payment, evidence is produced to the clerk thereof, and he must write on the back of the summons or warrant, and sign the words "payment made;" and in case of consignation, the clerk, in like manner, writes and signs the words "consignation made,” and the same is intimated by an officer of Court to the sequestrating creditor.

In either of these cases the sequestration is ipso facto loosed, without any intervention of the Judge. 1 Vict. c. 41, § 5.

In the Ordinary Court.

There are no provisions in the recent Sheriff Court Statute bearing directly on the recal of the sequestration in the Ordinary Court. It may of course be recalled by the Sheriff in the course of the proceedings, if he see fit; or, if necessary, an incidental petition may be presented.

Breach of Sequestration.

In the event of breach of sequestration being committed, a petition is competent, with the concurrence of the procurator-fiscal. The style and procedure will resemble that which we have already given in the case of breach of Interdict, voce Interdict.

Service of Heirs.

The service of heirs formerly proceeded on brieves from Chancery, directed to the Sheriff or other judges; but a new form of procedure was introduced in 1847 by the statute 10 and 11 Vict. c. 47, by which, and by the relative Act of Sederunt of 14th July 1847, the forms of procedure are minutely pointed out. We therefore refer to this statute and A. S., giving only a summary of the leading points.

The procedure is by petition, which is either to the Sheriff of Chancery or to the Sheriff of a county,—namely, in case of special service, the Sheriff of the county where the lands are situated; and in general service, the Sheriff of the county where the deceased had his domicile. In all cases it may, in the option of the petitioner, be presented to the Sheriff of Chancery; and it must be so presented, in case of petition for special service where the lands lie in different counties, or in case of general service, where the deceased had no domicile in Scotland at the time of his death.

The following is the form of a

Service in Special.

PETITION by an Heir of Conquest for Special Service to the Sheriff of the county

where the lands are situated.

Unto the Honourable the Sheriff of the county of Lanark, the Petition of
A. B., residing in Bath Street, Glasgow;

Humbly Sheweth,

That the late C. D., leather- merchant in Glasgow, died on or about the 1st day of September 1853, vest and seised in All and Whole the lands of Thistlebank (here describe them from the titles) lying in the parish of and county of Lanark, conform to disposition by

in his favour,

dated the 1st day of June 1846, and to instrument of sasine following thereon, recorded in the particular Register of Sasines at

June 1846.

the 6th day of

That the petitioner is the immediate elder brother and nearest and lawful heir of conquest in special of the said C. D., in the lands and others foresaid.

May it therefore please your Lordship to serve the petitioner nearest and lawful heir in special of the said deceased C. D., in the lands and others above described.

Mandatory for the Petitioner.

The petition signed by the petitioner, or by a party having his written mandate, is lodged with the titles and inventory thereof with the Sheriffclerk. The Sheriff-clerk prepares an abstract of it for publication, A. S. § 1. This abstract is transmitted to the Sheriff-clerk of Chancery for publication in the Record of Edictal Citations, A. S. § 2. The Sheriff-clerk of the county must also publish the abstract by affixing a copy on the doors of the Courthouse, or in some conspicuous places of the Court, or of the office of the Sheriff-clerk, as the Sheriff may direct. § 7.

If the deceased died in Scotland, no evidence can be led nor decree pronounced thereon by the Sheriff until the lapse of 15 days from the date of the latest publication, and in the case of petition to the Sheriff of Chancery, where the deceased died abroad, 30 days.

After the lapse of this period the Sheriff holds a Court, intimation being made to the petitioner's agent. At this Court the Sheriff may receive all such evidence, documentary and parole, as according to the law and practice heretofore existing might competently be laid before the jury summoned under the brieve of inquest, and parole evidence must be "taken down in writing, according to the existing practice in the Sheriff Courts in Scotland." § 10. We do not think that the new form of taking evidence by the Sheriff's notes applies to the case of services.

If, after the expiration of the induciæ of publication, the petitioner's agent wishes to have his evidence ready, so as to get the service passed on the Court-day, he may have it taken before the Provost or any of the Bailies of any city or royal burgh, who can act as commissioner without special appointment, or before any commissioner whom the Sheriff may appoint, § 10. A full and complete inventory of the documents produced must be made out, and must be certified by the Sheriff or Commissioner. § 10.

The Sheriff, without the aid of a jury, on considering the evidence, pronounces judgment, either serving or dismissing the petition, in whole or in part, and such judgment has the legal effect of the verdict of the jury, according to previous law and practice. § 10.

The proceedings are then transmitted by the Sheriff-clerk to Chancery, original documents or extracts of recorded writs produced, having been previously, on application, returned to the agent who produced them. The judgment is recorded in Chancery, and extract transmitted to the Sheriffclerk of the county, to be delivered to the party or his agent. The recorded proceedings are at all times patent in the Chancery Office, and certified copies may be had. § 12.

The decree of service is equivalent to a retour according to previous law

and practice, and any extract thereof equal to the extract of such retour § 13. It has also the effect of a disposition from the deceased to his heirs § 21.

The recorded and extracted decree is challengeable only by reduction.

Where the service is as heir of provision in special, or heir of tailzie and provision, a corresponding change is made in the above form of the petition. All real burdens, restrictions, or qualifications, as well as all entail fetters, may be either inserted in the petition or referred to in the petition as set forth in the recorded deed of entail, or in any instrument of sasine duly registered.

Service in General.

A service in general may be embraced in a petition for a service in special, the requisite addition to this effect being made in the petition. If a service in general only is required, the following is the form of a

Petition for General Service.

Unto the Honourable the Sheriff of Lanarkshire,

The Petition of A. B. residing in Bath Street, Glasgow;

Humbly sheweth,

That the late C. D. leather-merchant in Glasgow, died on or about the 1st day of September 1853, and had, at the time of his death, his ordinary or principal domicile in the county of Lanark.

That the petitioner is the immediate elder and only surviving brother, and nearest lawful heir in general to the said C. D.

May it therefore please your Lordship to serve the petitioner nearest and lawful heir in general to the said C. D.

The procedure generally is the same as that in a special service. Publication is made both edictally at Edinburgh, and in the county of the domicile of the deceased. The only requisite evidence is that of propinquity.

Cases of Disputed Succession.

Where it is apprehended by an heir that any other party intends to present a petition to be served, he may lodge a caveat in the manner provided by section 8. All objections in opposing a service are presented in writing, and disposed of in a summary manner by the Sheriff, without prejudice to his allowing parties to be heard viva voce thereon. A competing petition, or competing petitions, may be presented, and in that case the Sheriff may sist procedure in the first petition, conjoin the petitions, take evidence, pronounce judgment, and dispose of the matter of expenses. § 11.

Either of the parties, any time before the proof is begun to be taken, may advocate to the Court of Session, with a view to jury trial; and the procedure is like that of advocations under section 40 of the Judicature Act, § 17. The Court remit to the Sheriff to pronounce judgment. The Sheriff's

judgment in favour of either party may also be advocated within fifteen days from its date, on caution, and the procedure is, as in cases of advocation of final judgments. § 18. The Court of Session may either take additional evidence, or remit to the Sheriff to take the same, or try an issue, and thereafter remit to the Sheriff to pronounce decree. § 18.

A party, whose petition has without opposition been refused, may present another.

Service by Limitation.

A special service does not infer a general representation either active or passive. § 23. A party petitioning for general service may have the benefit of a passive representation limited to the extent or value of the lands and other heritages described in a specification to be attached to the petition. § 25.

Servitude.

The Sheriff before whom any action or proceeding connected with a servitude may be brought, is the Sheriff of the territory within which the property or servitude is situated; 1 and 2 Vict. c. 119, § 15. If the defender, or any of the defenders, if more than one, resides beyond the jurisdiction, he is cited by indorsation of the Sheriff-clerk of the county in which he resides.

The following will be the style of a

Summons of Declarator as to Mosses.

Sheriff, &c. (as on page 89). Shewn to me by A. B. (design) against C. D. (design), in terms of the conclusions underwritten: Therefore it ought to be found and declared, that the pursuer, as proprietor of the lands of has a right of servitude jointly with the defender and

over the mosses in the lands of
for the use and behoof of
their respective properties, but to that extent only; and that the defender
has no right to cast peats in said mosses for sale, or for the use of any other
person or persons than those residing in his own lands of

; and

the said defender, and his tenants, and other possessors of his lands, ought to
be decerned to desist and cease from casting, winning, and carrying away
peats or other fuel from the said mosses, for the purpose of selling or gifting
the same to the inhabitants of the village of
or other person
or persons whatsoever: And the said C. D. should also be decerned to pay
to the pursuer the expenses of process. And my will is, &c.

We need not give any other styles as to servitudes. In most cases where a party is interfered with in the exercise thereof, a petition for interdict will serve the purpose.

Suspension.

After the 1st of November next, two kinds of suspension will be competent in the Sheriff Court. One of these is made competent by the recent Statute, § 26, in the case of a small debt decree for any sum exceeding L 8, 6s. 8d., if such decree shall have been put to execution by imprisonment, It is declared "the party so imprisoned shall be entitled to bring such decree under review of the Sheriff by way of suspension and liberation, and such

suspension and liberation shall proceed in the form provided for summary

petitions by this act. § 26.

It seems to us that the following is a proper form of a

Petition for Suspension and Liberation.

Unto the Sheriff of the County of

A. B. (design.)

V.

C. D. (design.)

The petitioner A. B. humbly sheweth,

That a decree pronounced in your Lordship's Small Debt Court, at the instance of the said A. B. against the petitioner, for the sum of L.10, 15s., and 6d. of expenses, dated the

day of

has been put to

last, where he now is.

execution by imprisonment of the petitioner in the prison of

May it therefore please your Lordship to suspend the said decree, whole grounds, and warrants thereof, and all following thereon, and to grant warrant for liberation of the petitioner, and to find the respondent liable in expenses.

According to Justice, &c.

After service and meeting respondent or his agent, a We have little doubt of the

It does not appear to us necessary that this petition should contain any statement of the grounds on which it is presented. of the Sheriff with the petitioner's agent, and the condescendence, if necessary, will be ordered. Sheriff's power to minute the statement for the petitioner, as well as for the respondent at that meeting. At the same time we conceive that there would be no incompetency, in a case requiring so much despatch, in the petitioner annexing to his petition, before its presentment, a statement of the facts and pleas on which the prayer for suspension and liberation is founded. It will be observed that the statute makes no provision either for caution or consignation, but it is doubtless competent to the Sheriff, after meeting with parties, to order liberation, on such caution or consignation, if he sees fit. Suspension of a Charge on a Decree of Registration or Horning for payment of a sum not exceeding L.25, exclusive of Interest and Expenses.

This kind of suspension was made competent to the Sheriff, by 1 and 2 Vict. c. 119, § 19. The form is by petition to the Sheriff Court of the petitioner's domicile, and must be presented on caution. On caution being found in the hands of the clerk of Court for the debt, interest, and expenses, to be incurred in the Sheriff Court, the Sheriff has power to sist execution, and to order intimation of the petition, and answers to be given in thereto; and thereafter to proceed with the further disposal and decision of the cause in like manner as in summary causes in such Court, and to suspend the charge and diligence so far as regards the petitioner.

According to the present forms there is annexed to the petition of suspension a statement of facts and pleas; and we conceive that the recent statute does not abrogate such form of procedure. The petition of suspension and liberation may be as follows: