Thereafter the proceedings will be conducted as in ordinary actions, § 7, but with that dispatch which is at present given to summary cases.

CHAPTER VIII.

Incidental Points.

Abandoning an Action.

There appears to be nothing in the recent statute to interfere with the rule of the Act of Sederunt, that "it shall be competent to the pursuer before any interlocutor of absolvitor" (or leading to that result-Findlater, 24th May 1839) " is pronounced, to enter on the record an abandonment of the cause on paying full expenses to the defender, and to bring a new action, if otherwise competent." A. S. § 61.*

The abandonment here referred to is usually made by a Minute in the following terms :—

Minute Abandoning an Action.

Minute for A. B., tailor and clothier in Edinburgh, pursuer, against

C. D., cabinetmaker, residing in Castle Street there defender.

The pursuer craved the Court to allow him to abandon the present action at his instance against the defender, on payment of expenses, and reserving to him right to bring a new action, if so advised.

In respect whereof,

A. B., Pursuer.

Or ARTHUR ANGUS, Agent for Pursuer.

The Sheriff's interlocutor on this Minute may be as follows: :The Sheriff-substitute, in respect of the Minute for the pursuer, No. of process, dismisses the action, reserving right to the pursuer to bring a new action if so advised: Finds the defender entitled to expenses, and remits the account, when lodged, to the auditor to tax and to report. AND. JAMESON. Should a new action be raised before the expenses are paid, the pursuer will not be allowed to proceed with it until payment of those expenses.

There appears nothing to prevent the Sheriff, instead of at once pronouncing the interlocutor, dismissing the action, and remitting the account for taxation, to find in the first place the expenses due, and order them to be taxed, and when they are paid, to dismiss the action.

* Where in this Chapter sections only are quoted, they are those of the statute 1853, 16 and 17 Vict. c. 80. The sections prefixed A. S. are those of the Act of Sederunt, 10th July 1839.

In a case where the interlocutor following on a qualified Minute of abandonment bore, "assoilzies the defender," in place of dismissing the action, under the reservation of a right to bring a new one, the Court held that there was a clerical error in the interlocutor, and no res judicata.— Sheriff v. Brodie, 24th May 1836.

As to taking no procedure in a cause within three months, in which case it is to stand as eo ipso dismissed, but under certain provisions as to revival; § 15. See Chap. IX., Reviving.

Adjourning.

Certain diets of meeting with the Sheriff, &c. which are to take place at periods fixed by the statute, may be adjourned, as has been explained in in the last chapter. But a diet of proof is not to be adjourned except on special cause shewn and set forth in the interlocutor.

Advocation.

At the close of last chapter we have explained the three kinds of advocation.

The rules as to caution and juratory caution are contained in the A. S. §§ 114 and 121 et seq. As to intimating the note of advocation and transmitting the process, ib. §§ 127 and 128. And, pending advocation of interlocutory judgments, the Sheriff may regulate all matters respecting interim possession. § 130.

Amendment of Libel.

Occasion for this will more rarely occur under the new form of summons, which consists only of instance and conclusions, without statement or media concludendi. Still blunders may oc ur in the instance or conclusion. And for the decisions which have been given, we refer to the works of Mr Shand, Mr M'Laurin, and Mr M'Glashan, and need only call attention to the clause of the recent statute: "That it shall be competent for the Sheriff, where a cause is before him on any point, to open up the record ex proprio motu, if it shall appear to him not to have been properly made up." § 16.

When amendment is necessary, the party applies by motion, on which the Sheriff either grants leave de plano to amend, or allows a minute of amendment to be lodged and seen, on which he will hear parties, and then allow or refuse the amendment. The Interlocutor, if pronounced by the Sheriff-substitute, is not subject to appeal at this stage.

It was enacted by the A. S. that no libel shall be amended after citation is given thereon, except by authority of e Sheriff; § 11. And "when a libel is amended in absence of the defender, a copy of the amendment must be served upon him in the same manner and upon the same induciæ as the original libel." § 13.

In the Court of Session, where the condescendence is attached to and forms part of the original summons, the question was lately discussed as to the extent of change which could be introduced into the revised condescendence, excepting by amendment of the summons on leave obtained. The Lord Justice-Clerk, in delivering his opinion in the Second Division, announced the rule which, after consultation with the whole other Judges, was laid down, and to be enforced, viz. "That in everything which is of the essence of the action, whether in the averment of what is an essential quality, or of what is a proper ground of action, the summons and condescendence must be perfect and complete ab initio, and that no change can be introduced into the revised condescendence which alters the summons or the annexed condescendence (which is part of the summons), in such matters. Such change can only be by an amendment of the summons on leave obtained." Accordingly, in the action in which this was announced, which was one of damages against a party for maliciously and falsely stating calumnious matter to the Procurator Fiscal, it was held that a want of probable cause was of the essence of the action, and could not be introduced by way of revisal of the condescendence; Dallas v. Mann, 14th June 1853; 25 Jur. 448. The rule was stated as to be enforced also in the Sheriff Court, but this announcement was prior to the change which the statute prescribes in the form of the summons.

Appeal.

The matters of appeal from the Small Debt Court, or from the Substitute to the Sheriff, or from the Sheriff to the Court of Session, have been discussed in the former chapters.

Argument, Written and Oral.

The recent statute abolishes all written argument, except only in a reclaiming petition, in carrying out appeal from the Substitute to the Sheriff, where the appellant adopts that mode in place of oral argument. The words are,"The parties or their procurators shall be entitled to be heard orally when the cause shall be ripe for judgment, and on the import of any concluded proof, and at any other stage of the cause when argument may be necessary, and shall be appointed by the Sheriff; and it shall not be competent, at any stage of the cause, to receive any written argumentative pleading, excepting as herein after provided" (i. e. reclaiming petition). § 12.

But the Sheriff shall, if required by either of the parties, take a note of the authorities cited in the course of the oral argument. § 12.

And also, where he shall see fit, of the argument. § 13.

And such note shall form part of the process. § 12.

Arrestment.

As already seen, arrestment may be used on the clause authorizing it in. the will of the summons, given p. 30 above. As to other warrants for arrestment, also the mode of using it, and having it loosed or recalled, the procedure belongs to the next chapter, where it shall be stated, voce Arrestment.

Asleep and Wakening.

Hitherto a process, after being in Court, fell asleep when it was allowed to lie over for a year and day without any judicial proceeding. A new enactment now seems to supersede this rule, and cases in which no proceeding has been taken for three consecutive months, are, except where the right under the action has been acquired by a third party, to stand dismissed, but under provisions as to reviving. § 15. See below, Reviving.

Borrowing Processes.

Procurators of Court, and qualified agents resident within the jurisdiction of the Court, are alone entitled to borrow any process, by themselves or their clerks duly authorized, and for whom they are responsible by the ordinary compulsitors of the law.-A. S. § 159. But it must be observed that, according to the recent Act, parties themselves are allowed to appear at every stage for themselves, and to sign their papers.

The Statute 1 and 2 Vict. c. 119, § 16, directs that an inventory of the process shall be kept by the clerk, in which the borrowing and returning of processes shall be entered, and no process shall be given up by the clerk without a receipt or such inventory. See also A. S. § 163, which directs that a separate inventory shall accompany the proceedings.

Caption for Process.

Where a process is unduly kept up by the agent of either of the parties, a caption, which is warrant to officers of Court to apprehend and incarcerate the agent or clerk who granted the receipt till it is returned, is granted by the Sheriff on application of the opposite agent after intimation. The form is as follows:

The Sheriff of

imprisoning in the prison of
writer in

receipt)

cess A.B. against C.D.

shire grants warrant for apprehending and the person of

and (if a clerk subscribed the his clerk, until they return to the clerk the pro

Payment of the dues of the caption and officer's fee for executing, was, before the abolition of imprisonment for small debts, part of the warrant.

If the party against whom a process-caption is issued has any good objection, he ought to apply to the Sheriff, and not, in the first instance, to present a note of suspension in the Bill-Chamber.

Forcing back the process, however, may often be effected by enrolment, and notice may be given that production of the process will be demanded when the cause is called. And on failure the Sheriff may award a penalty or amand. See below, voce Interlocutor Sheets.

Circumduction.

Where a party failed to lodge a paper which had been ordered, or after a proof had been allowed, there was undue delay to proceed with it, it was the practice in some Sheriff Courts to pronounce circumduction, and hold the party as confessed; in others, to send the case to the Sheriff, with a certificate by the Clerk of Court of default. There is no enactment relating to circumduction in the recent statute. By § 10 thereof, evidence is to be led at the diet appointed for proving; and the diet is not to be adjourned unless on special cause shewn; and the proof is to be taken as far as may be continuously. The statute seems to point at a procedure similar to that in the Jury Court. The Sheriff's notes will bear the res gesta; and special enrolment for circumduction appears unnecessary, except in the case where a commission has been granted and not reported. See A. S. § 81.

Citation.

Forms of execution and citation, both as regards parties and witnesses, have already been given. Where parties reside in a different county, all warrants of citation, when endorsed by the Sheriff-clerk of that county, have equal effect as in the county where issued. Letters of supplement, however, remain competent. One witness to every execution by an officer (except of a poinding) is sufficient. 1 and 2 Vict. c. 119, §§ 23 and 24, and the A. S. 88 16, 72.

Conjoining Processes.

Under the former practice it was generally necessary, in order to conjoining processes, that they should be between the same parties, and closely connected with cach other, and that one should not be in a greatly more advanced stage than the other, nor one for a liquid and the other for an illiquid claim. There is nothing in the new statute to interfere with the continuance of such rules.

Decree.

The procedure in cases of decree by default, and the provisions as to the Sheriff setting forth the grounds of his judgment in certain decrees, and that a decerniture for expenses includes the expense of extract, have already been menioned in the course of the ordinary procedure.

Interim Decree.- No interim decree can be extracted without a special