2. Admitted that the goods were furnished on the defender's order, but explained that the prices thereof, as stated in the account libelled on, are overcharged to the extent of at least one third. More than three years

have elapsed from the date of the first two items of the account, and it is not a continuous account.

3. The defender is not resting owing as stated.

DEFENDER'S COUNTER STATEMENT.

1. The defender is a cabinetmaker in Edinburgh, and has a place of business in Castle Street there, but his residence is at Sweethope, in the county of Haddington.

2. The said horse, when borrowed from the pursuer, laboured under a fatal disease, of which the defender was not made aware; and it was under the influence, and in consequence of that disease that he died, without any undue use of him having been made by the defender.

3. The price and value of said horse, even had he been sound, did not exceed the sum of L.13.

PLEAS IN Law.
Preliminary.

1. No jurisdiction, in respect the defender resides beyond the limits of the county.

On the Merits.

1. The horse having died without any fault on the part of the defender, he

has incurred no liability therefor. Et separatim. The value put upon the horse by the pursuer is extravagant.

2. The first two items of the account of furnishings, which is not continuous, have undergone the triennial prescription.

3. The goods sued for being overcharged, the defender is not liable in the amount sued for, and is not resting-owing as libelled.

In respect whereof,

ALFRED BRUCE, Defender's Procurator.
Drawn by me.

When these papers have been lodged, the Sheriff-clerk shall transmit the process to the Sheriff. § 4.

Meeting with the Sheriff.

The Sheriff, as soon as may be, and at latest within six days after the lodging of the defences, shall appoint the parties or their procurators to meet him; § 4. It may be noticed that the words are, that the appointment shall be made within six days, not that the meeting shall be within six days, though the latter appears to have been intended, if we may judge from the enactment which immediately follows, with reference to the meeting after the lodging of revised condescendence and defences, where the order is to meet within six days.

This meeting before the Sheriff, after lodgment of condescendence and defences, may be adjourned where the Sheriff sees fit, but for no longer period than eight days. § 4.

The Statute makes provisions as to several things which may be done at this meeting, or at the adjourned meeting.

(1.) Dilatory defences, when stated, are, where possible, to be disposed of at once; or the Sheriff may reserve consideration of them till a future stage of the cause. § 4.

2. If the pursuer is willing to close the record on summons and defences, it is implied that the record must be so closed. § 4.

3. Where the pursuer is not willing so to close, the Sheriff may, if he thinks fit, order one revisal of the condescendence and defences respectively, § 4., which shall be made on the original papers, unless otherwise directed.

(4.) The sheriff shall allow the pursuer, or his procurator, to put on record, in concise and articulate form, if not 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. § 4.

(5.) And shall allow each party to adjust his own part of the record. § 4.

(6.) And shall strike out of the record any matter which he may deem to be either irrelevant or unnecessary. § 4.

(7.) The record shall then be closed by the Sheriff writing on the interlocutor sheets the words, "Record closed," and signing and dating the same. § 4.

To apply these provisions to the circumstances of the case which we have supposed. The parties are at issue on the facts out of which the preliminary plea arises, namely, the defender having a residence in Edinburgh or not. The Sheriff, therefore, is not in a situation to dispose of that plea.

The pursuer is not in a situation to close on summons and defences, as the defender's counter-statement remains unanswered.

But it seems a case in which issue in fact would be sufficiently joined by the pursuer putting on record answers to the defender's statement of facts. Supposing this, the answers might be as follows-attached to the original condescendence :

ANSWERS for PURSUER to DEFENDER'S STATEMENT.

1. Admitted that the defender is a cabinetmaker in Edinburgh, and that he has a residence at Sweethope, in the county of Haddington. Denied, quoad ultra, and explained that the defender has also a residence attached to his place of business in Castle Street, Edinburgh, where he eats, and occasionally sleeps.

2. Denied; and explained that the horse had only a slight cold, of which the defender was informed when he borrowed him.

3. Denied.

In respect whereof, &c.

ARTHUR ANGUS, Procurator for Pursuer.
Drawn by me.

The only point now remaining to be met by the defender is the allegation that he has a residence attached to his place of business in Edinburgh, where he eats and occasionally sleeps. In adjusting the record, the defender must admit or deny this. Supposing him then to amend his counterstatement (on page 38), as follows:

The defender eats and occasionally sleeps in an apartment attached to his premises in Castle Street; but his family residence is at Sweethope.

Such alteration should be made by marginal addition; and marginal additions must be authenticated by the Sheriff's initials, in terms of the provision in § 45 of the Act of Sederunt of 1839, that "All alterations or additions made on the margin of the record, at any period before it is closed, shall be authenticated by the initials of the Sheriff."

After adjusting, the Record is closed by the following words on the Interlocutor sheet :

Record closed.

Edinburgh,

1853.

AND. JAMESON.

It may here be observed, that the Record thus closed may, if the case afterwards goes to appeal on any point, be opened up by the Sheriff ex proprio motu, if it shall appear to him not to have been properly made up. § 16. A. of S. 1839, § 99.

The Sheriff would probably consider that there are now materials for disposing of the preliminary defences, but that the case on the merits required proof.

The Sheriff would therefore, of the same date, but by separate Interlocutor, either make avizandum, or appoint a day to hear the parties on the preliminary defence.

Edinburgh,

The Sheriff substitute makes avizandum with the process.

OR,

1853.

AND. JAMESON.

The Sheriff-substitute appoints parties or their procurators to be heard

on the

day of

on the preliminary defence.
AND. JAMESON.

Disposing of Preliminary Defences.

The next interlocutor would be one disposing of the preliminary defence; and the Sheriff is to state his grounds, either in the interlocutor, or in a note appended thereto. § 13.

Supposing the plea sustained, the interlocutor might be this :

The Sheriff-Substitute having considered the process (and heard the procurators for the parties, if so), finds it admitted that the defender has a residence at Sweethope in Haddingtonshire, and that he resides there with his family, though he may occasionally sleep in the apartment attached to his place of business in Castle Street, Edinburgh: Finds that his residence in Haddingtonshire is his legal domicile, and that he is not subject to the jurisdiction of this Court: Therefore sustains the preliminary plea of no jurisdiction, dismisses the action, and decerns; Finds the pursuer liable in expenses, and remits the account, when lodged, to the auditor, to tax and report.

AND. JAMESON.

Note. (Here the views on which the Sheriff proceeded may be stated.)

Against this interlocutor, if pronounced by the Sheriff-Substitute, the pursuer may appeal to the Sheriff. An interlocutor disposing of a preliminary defence being one of those which may be so appealed under the provisions of § 19.

If he is to do so, he must (§ 16), within seven days from the date of the interlocutor, engross and sign by himself, or his agent, under the interlocutor appealed against, the words—

"I appeal against this interlocutor.”

ARTHUR ANGUS, for the Pursuer.

The mode of further prosecuting the appeal is stated below, voce Appeal. On the other hand, supposing the Sheriff-substitute to be of opinion that there is jurisdiction, the interlocutor might be this:

Edinburgh,

1853.

The Sheriff-substitute having advised the process (and heard parties' procurators, if so), Finds it admitted that the place of business of the defender is in Castle Street, Edinburgh, and that the defender eats and occasionally sleeps there, though he has another residence in Haddington, where his family resides: Finds, in respect of his residence in Edinburgh, that he is subject to the jurisdiction of this Court; Repels the preliminary plea stated for the defender; and on the merits allows to both parties a proof of their averments; and appoints the proof to proceed within the Sheriff Court House, Edinburgh, on the

day of

at

o'clock.

AND. JAMESON.

Note. (Here the views on which the Sheriff proceeded may be stated).

F

Against this interlocutor the defender may appeal within seven days, in the same manner as already explained.

There is a third mode of dealing with preliminary pleas, which is, "reserving consideration of them till a future stage of the cause." § 4.

Closing on Minute of Denial.

Let us suppose that in the case we have instanced, the record, in place of being closed on articulate answers for the pursuer to the defender's statement, were closed on a general minute of denial by the pursuer. Such minute will be in this form :

MINUTE of DENIAL for A. B. Pursuer,

IN CAUSA

v.

C. D. Defender.

The pursuer denies the defender's statement of facts, in so far as inconsistent with the condescendence.

In respect whereof, &c.

Drawn by Arthur Angus, Pursuer's Pror.

In this case facts would require to be ascertained in order to dispose of the preliminary defence; the Sheriff would probably, after writing the words "record closed" on the interlocutor sheet, pronounce as follows :—

The Sheriff-substitute reserves consideration of the preliminary pleas;
Allows both parties a proof of their averments; and appoints the proof
to proceed within the Sheriff Court House, Edinburgh, on
the

day of

at

o'clock.

AND. JAMESON.

Against such an interlocutor an appeal to the Sheriff would be competent; not in respect of its reserving the preliminary defences, but as allowing a proof.

Under § 19 of the statute, an interlocutor allowing a proof is one of those which may be appealed to the Sheriff, when pronounced by the Sheriffsubstitute. Such interlocutor, in cases above L.40, may also be advocated for trial by jury, in terms of the Act 6 Geo. IV. c. 120, if the right so to advocate with a view to jury trial be not taken away by §§ 24 and 25 of the recent Act; on which question there may be room for doubts, as will be more fully explained in the observations below, voce Review.

Suppose the interlocutor allowing proof neither appealed nor advocated, the case would then proceed to proof on the pleas, both preliminary and on the merits; or the Sheriff might order the proof only on the matters involved in the preliminary plea; in which case his interlocutor might be as follows: