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Sheriff Courts (Scotland).
[39 & 40 VICT. Cu. 70.]
ARRANGEMENT OF CLAUSES.
Preliminary.
Clause.
1. Short title.
- Commencement and application (^) ofAct.
- Interpretation of terms.
I.-Sessions.
- Ofthe^ sessions.
5. Court days invacation.
II.-Petition and Service.
6. Form^ ofpetitions^ and^ defences.
7. Petitions,^ &c.^ maybe^ written^ orprinted.
8. Inducia of^ petitions^ and^ periods^ of^ charge.
9. Sheriff's warrants, &c. maybe executed^ edictally.
10. Originalpetitions to remain in thehandsofthe clerk; certified
copies may beborrowed.
- As toproving lost petitions.
12. Of the service of writs.
13. Amendment of petitions in undefendedcauses.
III.-.Decrees in absence.
14. Decrees^ inabsence.
15. Certaindecrees^ inabsence^ to^ have^ effectas^ decrees^ in^ foro.
IV.--Entering Appearance^ : Records.
16. Procedure where defender^ enters^ appearance.
17. Revisal^ ofpleadings^ notto^ be^ allowedas^ matter^ ofcourse.
18. Procedure^ after^ pleadings^ completed,^ and^ adjustment^ of
pleadings.
[Public.-70.] a^ i
A.D. 1876.
[CH. 70.] Sheriff Courts^ (Scotland). [39^ &^40 VICT.]
A.D. 1876. Clause.
- Prorogations of^ consent^ abolished.
- If parties^ fail to^ appear^ in^ defended^ action,^ sheriff^ to^ give judgment.
- Penalty on^ agent^ failing^ to^ return^ process^ borrowed.
- Production of documents.
- Procedure afterrecord^ closed.
24. Amendmentofrecords^ in^ defended^ actions.
V.-Special Actions; Multiplepoindings;^ Processes^ of^ Cessio.
25. Procedure inmultiplepoindings.
- Cessio bonorum.
VI.-Appeals.
- What appeals competent^ before^ finaljudgment.
- Note of appeal against^ judgment^ ofthe^ sheriff^ substitute.
- "Effect ofappeal.
- How reclaiming^ petitions,^ &c.^ shall^ be^ drawn.
- Powerto^ regulate^ possession,^ &c.^ pending^ appeal.
32. When judgment, &c.^ may^ be^ extracted^ ifno^ appeal.
- Final judgments may^ be^ appealed^ within^ one^ month,^ if^ not sooner extracted or^ implemented.
34. Correction ofaccidental^ errors^ injudgments.
VII.-The Commissary Courts abolished.
- Commissary courts^ abolished,^ and^ powers^ transferredto^ sheriffs.
36. Office ofcommissary^ clerk^ in^ certain^ cases^ abolished.
37. Vacancies in^ office^ of^ commissary^ clerk^ not^ tobe^ supplied.
38. All commissary^ clerks,^ except^ inEdinburgh,^ to^ be^ abolished
onvacancies occurring.
39. Commissary clerks^ continuing^ in^ office^ to^ performthe'duties
in the sheriffcourt.
- Provisions, to have effect^ on^ the^ abolition^ of^ the^ office^ of^ com- missary clerk.
VIII.-Amendment ofLaw as^ to^ Confirmation ofExecutors.
41. Note in confirmation by sheriff clerk or commissary clerk^ that
deceased died domiciled in Scotland substituted for certified
copy 'interlocutor by the sheriff commissary and to have
like effect.
ii
[39 & 40 VICT.] Sheriff Courts (Scotland). [Cii. 70.]
CHAPTER 70.
An Act to alter and amend the Law relating to the Adininis- tration of Justice in Civil Causes in^ the^ ordinary^ Sheriff A.D.^ 1876.
Courts in Scotland, and for other purposes relating thereto.
[15th August 1576.]
BE it enacted by theQueen'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 ofthe^ same,^ as^ follows^ :
Preliminary.
1. This^ Act^ may^ be^ cited^ for^ all^ purposes^ as^ "The^ Sheriff^ Courts^ Short^ title.
(Scotland) Act, 1876."
2. This Act shall commence and^ come^ into^ operation^ on^ the
first day of October one thousand eight^ hundred^ and^ seventy-six,
which date^ is^ herein-after^ referredto^ as^ the^ commencement^ of^ this
Act. Unless where^ otherwise^ expressly^ provided,^ this^ Act^ shall
only apply^ to^ civil^ proceedings^ in^ the^ ordinary^ sheriff^ court.
Commence- ment (^) and application of Act.
- InthisAct,^ unless^ when^ there^ is^ something^ in^ the^ sense^ or^ Interpreta-
context repugnant to^ that^ construction,^ the^ following^ terms^ have^ tion^ ofterms.
the meanings herein-after^ assigned^ to^ them;^ that^ is^ to^ say, Action" includes^ every^ civil^ proceeding^ competent^ in^ the ordinary sheriffcourt: Person" includes company, corporation, andfirm^ : Sheriff"^ includes^ sheriff^ substitute^ : Sheriff clerk"^ includes^ sheriff^ clerk^ depute,^ and^ inPartVIII.of
this Act means^ commissary^ clerk,^ inthose^ cases^ inwhich^ such
office is notabolished^ :
Agent " means a law^ agent^ enrolled^ in^ terms^ of^ the^ Act^ of
the thirty-sixth and thirty-seventh^ years^ of^ thereign^ of^ Her
present Majesty, chapter^ sixty-three^ : Final judgment"^ means^ a^ judgment^ or^ interlocutor^ which,
either by itself^ or^ taken^ along^ with^ a^ previous'^ interlocutor^ or
[Public.-70.] A^1
A.D. 18716.
[CIT. 70.] SheriffCourts^ (Scotland).^ [39^ &^40 VICT.]
interlocutors, disposes^ of^ thewhole^ subject-matter^ of^ thecause,
or of the competitionbetween^ the^ parties^ in^ aprocess^ of^ com-
petition, although judgment shall^ not^ have^ been^ pronounced
on all the questionsof lawor fact^ raised^ therein,^ andalthough
expenses, if found due, have not^ been^ taxed,^ modified,^ or
decerned for. I.-Sessions.
Ofthe 4. Each sheriff shall hold^ two^ sessions^ in^ each^ year,^ the^ one
sessions. of which shall be called the winter session, and the other the
summer session.
The wintersession shall ineach year^ commence^ on^ the^ first^ day
ofOctober or the^ first^ ordinary^ court^ day^ thereafter,^ and^ shall^ end
on thelast^ ordinary court^ day^ inMarch^ ;^ butit^ shall^ be^ lawful^ for
the sheriff to^ adjourn^ the^ court^ at^ Christmas^ time^ for^ a^ period^ not
exceeding fifteen days.
The summer session^ shall^ commenceon^ the^ first^ dayof^ May^ or
the first ordinary court^ day^ thereafter,^ and^ shall^ end^ on^ the^ last
ordinary court dayinJuly.
Court days 5. The^ sheriff^ shall^ before^ the^ termination^ ofeach^ winter^ session in vacation. (^) appoint at least one court day during the spring (^) vacation for the
despatch of civil business; and shall before^ the^ termination^ of
each summer^ session^ appoint^ at^ least^ two^ court^ days^ during^ the
autumn vacation forthe^ same^ purpose.
Form of petitions and defences.
II.-Petitionand^ Service.
6. Every^ action^ in^ the^ ordinary^ sheriff^ court^ shall^ be^ commenced
by a petition in one ofthe forms as nearly as may be, contained in
Schedule (A.) annexed to this Act, inwhich the pursuer shall set
forth the court in which the actionis brought, his own name and
designation, and the name^ and designation of the defender, (^) andthe prayer of the petition, without any statement (^) whatever of the grounds of action. There shall be annexed to the (^) petition a state- ment (in^ the^ form^ of^ an^ articulate^ condescendence)^ of the facts which formthe grounds of^ action,^ and^ a^ note^ of the pursuer's pleas
in law, which condescendence^ and^ note^ of^ pleas^ shall be held to
constitute part of the petition. The statement^ of^ facts^ shall^ be^ made^ succinctly^ and^ without
quotation fromdocuments^ except^ where^ indispensable.
The warrantfollowing^ upon^ such^ petition^ shall^ be^ as^ nearlyas
may be in^ the^ form^ contained^ in^ the^ said^ Schedule^ (A.),^ which
schedule and^ the^ notes^ thereto^ and^ directions^ therein^ shall^ be construed and^ have^ effect^ as^ part^ ofthis^ Act. 2
A.D. 1876.
Astoproving lostpetitions.
Ofthe ser- vice ofwrits.
[Cx. 70.1 SheriffCourts (Scotland). [39 & 40 VrcT.]
and of the warrant thereon, certified as correct by him or his agent
in the cause, and which maythereafter be borrowed by any party
to the process, and where a warrant has^ been^ granted^ to^ arrest^ on
thedependence ofthe action,such certifiedcopyshall bea sufficient
warrant for such arrestment. Separate precepts ofarrestment may
be issued as heretofore.
11. Where^ a^ petition^ or^ any^ other^ pleading^ is^ lost^ or^ destroyed
a copythereofproved in the actionto the satisfaction of the sheriff
before whom the action isdepending at the time, andauthenticated
in such manner as he shall require, maybe substituted, and shall
be held equivalent to the original forthe purposes ofthe action.
12. With regardto^ the^ service^ of^ writs^ issuing^ from^ the^ sheriff
courts, the followingprovisions^ shall^ have^ effect;^ thatis^ to^ say,
(1.) A warrant of^ citation^ issuing^ from^ any^ sheriff^ court^ against
any defender^ who^ under^ the^ provisions^ of^ this^ Act^ is'
subjectto the jurisdiction of such sheriff court, but who
has his domicile within the jurisdiction of another sheriff
court, maybe competently executed against such defender
within and by an officer of thesheriff court of the county
in which such defender is domiciledwithout anyindorsa-
tion thereof by the sheriff clerk of such last-mentioned
county :
(2.) A partywho appears shall notbe permitted to state any ob-
jection to the regularity of the execution or service as
against himself of thepetition bywhich heis convened :
(3.) The sheriff may authorise the pursuer to serve of new his
petition on any defender who has not entered appearance
should itappeartothesheriff thattherewasanyirregularity
in the serviceon^ such defender,^ and the petition, on being
so served of^ new,^ shallbe^ proceeded with as if there had
been no previous service, subject to such order as to
expensesas to^ thesheriff^ shall seem just:
(4.) Service, in ordinary form,^ on a minor, and on his father as
curatoratlaw, or^ upon^ a^ minor and his tutors andcurators
if known to thepursuer,^ or,^ if^ theyare not known, upon
theminor himselfin^ ordinary^ form, and his tutors and
curators edietally, shall^ be good^ and sufficient service on
theminor^ for^ every^ purpose^ of^ law:
(5.) Anarrestmentshallbeineffectual,^ whenthescheduleofarrest-
mentshall nothavebeen^ personallyserved^ on thearrestee,
unless a copy of^ such^ schedule^ shall^ also be sent to the
arrestee at his lastknownplace^ of^ abode^ throughthe post
by the officer serving the same, who shall certify in his
4
[39 & (^40) VICT.] (^) Sheriff (^) Courts (Scotland). (^) [Cx. (^) 70.]
execution (^) that he (^) has done so, stating (^) the address to A.D. 1876.
which the copy has been sent : -
(6.) (^) Service at the market (^) cross is hereby (^) abolished.
- In^ an^ undefended^ action^ in^ the sheriff court any (^) error or Amendment
defect in the petition whereby the same is commenced may be of^ etions
unde
endedin amended, if the (^) sheriff shall think such (^) amendment should be causes.
allowed ; and such amendment shall be made in writing, either
upon the petition, or in a separate paper, signed by the pursuer
or his agent ; and the sheriff may, if he shall (^) see fit, order the amended petition to be served upon any (^) defender' who has not entered appearance, and allow him (^) to enter appearance
within such time as shall seem proper : Provided that the
expenses occasioned by such amendment shall not be chargeable
against any^ defender^ ;^ provided^ also,^ that^ such amendment shall not have the^ effect^ of^ validating^ diligence^ used on the dependence of the action so as^ to^ prejudice the rights of creditors (^) of
the defender interested in defeating such diligence, but shall be
operative to the effect of obviating any objections to such diligence when stated^ by^ the^ defender^ himself,^ or^ byany^ person^ representing
him bya title, or in rightofa debt contracted by him subsequent
to the using^ ofsuch^ diligence.
III.-Decreesin absence.
14. On^ the^ expiration^ of^ the^ inducim^ in^ any^ action^ without^ Decrees^ in
appearance being^ entered^ for^ the^ defender,^ the^ sheriff^ shall,^ on^ the^ absence.
motion' of the pursuer,^ grant^ decree^ in^ absence^ incommon^ form
in terms of^ the^ prayer^ of^ the^ petition,^ or^ subject,^ to^ such^ restric-
tions as may^ be^ set^ forth^ in^ a^ minute^ written^ on^ the^ petition^ by
the pursueror^ his^ agent,^ and^ the^ sheriffclerk^ may,^ seven^ days^ after
the granting of^ a^ decree^ in^ absence,^ issue^ extract^ of^ such^ decree^ :
Provided as follows^ :
(l.) At any time^ within^ seven^ days^ fromthe^ date^ of^ such^ decree
it shall be competent^ for^ the^ defender,^ after^ consigning
inthe hands of the sheriff clerk^ the sum^ of two pounds
sterling, and lodging his defences,^ to enrol the action in
the sheriff's^ motion^ roll;^ or^ when^ such^ seven^ days^ shall
expire intime^ of^ vacation, after^ consignation^ as^ aforesaid,
to lodge^ his^ defences^ with^ the^ sheriff^ clerk,^ at^ any^ time
withinsuchseven days,^ andthereaftertoenroltheaction^ in
the said roll against^ the^ next^ ensuing^ sitting^ of^ the^ court;
and the action being^ in^ the^ roll,^ to^ move^ the^ court^ to
A 3 5
[39 & 40 ViCT.] Sheriff Courts (Scotland). [CH. 70.]
(4.) Any interlocutor or order recalling, or incidental to the A.D. 1876.
recall, of a decree in absence pronounced under this see-
tion shall, be finaland not subject (^) to review.
- Where^ a decree^ upon which a (^) charge is competent shall Certain
have been pronounced in absence of a defender after personal decrees^ in
absence to service (^) of the petition on such defender, (^) or after the entering of have effect
appearancefor such defender with hisauthority, or wherea defender as^ decrees^ in
shall (^) havebeen personally charged on such (^) a decree, whether the fore.
petition was personally served upon him or appearance made for
himwith his authority or not, and such decree shall not have been
recalled in virtue of the provisions to that effect herein-before
contained, such decree, upon the lapse of (^) six months after the
expiration of a^ charge upon^ it^ not^ brought under review by
suspension, where suspension is^ competent,^ shall be entitled to all
the privileges of a decree in^ foro against such defender; (^) and
any decree on which a charge is not competent, obtained in
absence after such personal service or appearance as aforesaid, shallbe final after the lapse of twenty years from its date unless the same shall before that time have been lawfully recalled (^) or brought under^ review^ bysuspension^ or^ reduction.
IV.-Entering Appearance: Records.
16.Where the defender^ intends^ to^ state^ adefence,^ he shall enter
appearance bylodging^ with^ the^ sheriff^ clerk,^ before^ the^ expiration
of the induciae, a notice^ in^ the^ form^ of^ Schedule (B.) annexed to
this Act;^ and^ he^ shall,^ on^ the^ first^ court^ day^ after^ the^ expiration
of the indueiae,^ or^ atthe^ latest^ at^ an^ adjourned^ diet^ not^ later^ than seven days^ after^ the^ expiration^ of^ the^ induciae,^ lodge^ defences^ with
the sheriff clerk.^ The^ defences^ shall^ be^ in^ the^ form^ of^ articulate
answers to the^ condescendence,^ and^ shall^ have^ appended^ thereto
a note of the^ defender's^ pleas^ in^ law,^ and,^ where^ necessary,^ a
statement ofthe^ facts^ on^ which^ the^ defender^ founds^ in^ defence.
The statement of^ facts^ and^ answers^ shall^ be^ made^ succinctly^ and
without quotation^ from^ documents^ except^ whereindispensable.
17. Neither^ party^ shall^ be^ entitled^ as^ matter^ of^ right^ to^ ask^ for
a revisal of his^ pleadings^ ;^ but^ it^ shall^ be^ competent^ for^ the
sheriff to allow or^ to^ order^ a^ revisal^ of^ the^ pleadings,^ upon^ just
cause shown.
- If^ no^ motion^ for^ revisal^ is^ made,^ orif^ such^ a^ motion^ is^ re-
fused, or^ after^ the^ lapse^ of^ the^ period^ within^ which^ the^ revised
pleadings fall to^ be^ lodged^ where^ a^ revisal^ has^ been^ allowed^ or A4 7
Procedure where de- fender enters appearance.
Revisal of pleadings not to be allowed as matter of course. Procedure after plead- ings com- pleted, and
A.D. 1876. adjustment ofpleadings.
Prorogations of consent abolished.
Ifparties
fail toappear indefended action,sheriff togivejudg- ment.
Penalty on agent failing to return process bor- rowed.
Production of docu- ments.
Procedure after record closed.
[Cii. (^) 70.] Sherifj- Courts (Scotland). [39^ &^40 VICT.]
ordered, the sheriff clerk shall transmit the^ process^ to^ the^ sheriff
andthe sheriffshall direct the action to^ be put^ to^ the^ roll^ forthe
first court^ day^ occurring^ not^ less^ than^ four^ days^ thereafter,^ and
upon such day shall require the parties then to adjust^ their pleadings, and shall close the record.
- Itshall^ not^ be^ competent^ of^ consent^ of^ parties^ to^ prorogate
the time for complying^ withanystatutoryenactmentor^ order^ ofthe
sheriff, whether with reference to the making up and closing of the
record, appointing^ a^ diet^ ofproof,^ diet^ of^ debate,^ or^ otherwise.
- Where in^ any^ defended^ action^ one^ of^ the^ parties^ fails^ to appear by himself or^ his^ agent^ at^ a^ diet^ of^ proof,^ diet^ of^ debate,^ or
other diet inthe cause, it shall be in the power of the sheriff to
proceed in his absence, and unless a sufficientreason appear to the contraryhe shall, (^) whethera motion to that effect is made or not, pronounce decree as libelled or of absolvitor (as the case may require), (^) with expenses ; or ifall parties fail to appear, he shall,
unless a sufficient reason appear to the contrary, dismiss the
action.
- Where^ an^ agent^ who^ has^ borrowed^ a^ process,^ or^ any^ part thereof, failsto returnthe^ same^ for^ any^ diet^ in^ the^ cause^ forwhich the process or the part thereof^ which may^ have^ been borrowed
shall be required, it shall be the duty of the sheriff, whether a
motion to that effect is made or not, to impose upon the (^) agent so
failing a fine of not less than one pound sterling, which fine shall
be payable to the clerk of court for behoof of Her Majesty:
Provided always, that it shall be competent for the sheriff who
imposed the fine, on cause shown, to recall (^) the order imposing (^) the same, but such order shall not be subject to review.
- At^ or^ before^ the^ closing^ of^ the^ record^ each party (^) to an
action shall^ produce^ all^ documents^ specially^ mentioned in his
pleadingand whichare inhishands. Anyother documents,whether
in his hands or not, maybe produced by him during the proof,
but without prejudice^ to^ the^ power^ of^ the^ sheriff to order their
production at any stage^ ofthe cause. It shall be lawful^ for^ the^ sheriffto^ order or allow (^) apartyat (^) any
time before judgment to produce any documentwhich hefailed to
produce timeously, upon such terms as to payment (^) of expenses (^) and
allowingfarther^ proof^ to^ the^ other^ party^ as^ to^ the sheriffshall seem
just.
23. The^ sheriffshall^ at^ the^ time^ of^ closing^ the^ record require
the parties then to state^ whether they^ are^ ready to renounce further
8
A.D. 1876.
CH. (^) 70.] SheriffCowrt8.(, cotland). [39-1& 40. VrcT]
agreed on the facts, make,their averments in the form of
a joint case, appending thereto their respective claims and
pleas inlaw
(4.) When the parties who shallappear^ and^ claim^ aninterestin
the fund in medio shall have-lodged^ their claims,or had
opportunity allowed them for doing so, the sheriff shall
appoint the parties...or their..agents to meet him; and shall atsuch meeting allow each .party to adjust his own
part of the record, and to meet the averments of the
other .claimants so. far as necessary ; and the procedure
at such meeting, and- inthe after progress of the action,
shall (^) be as nearly (^) as may (^) be the same (^) as is herein-before
provided with reference to ordinaryactions after defences
have been lodged: Cessio 26.^ Fromand after the passing of this Act the following provi-
bonorum. sions shall have effect withrespect to processes of cessio bonorum :
(1.) All such actions shall be instituted^ inthe sheriffcourt only: (2.) Adebtor being insolvent and under a charge to pay any (^) civil debt on which charge imprisonment mayfollow ; or against
whom a decree for payment of civil debt, not requiring a
charge, has been granted, on, which imprisonment (^) may follow ; shall, being prepared to, surrender his whole means
and estate to his creditors, be entitled to raise an action in
the sheriff court, prayingforinterimprotectionand fordecree
of cessio bonorum under the Act of thesixth and seventh
years of the reign of King William the Fourth, chapter
fifty-six, as amended by this Act, and the production of the
said charge, or a certificate of the granting of sucha decree
as aforesaid, (^) under the hands of the clerk (^) ofthe court (^) which
granted the same, shall be a sufficient title on which to
raise (^) such action :
(3.) It shallbelawful for the sheriff-
(a.) At once to grant interim protectionagainst imprison-
ment for civil debt tothe applicant on his finding
caution, (^) for such amount (^) as the sheriff (^) may (^) deem reasonable, (^) for his appearance (^) at (^) all diets (^) of the
process:
(b.) When the applicantis in prisonto grant warrant for
his interim liberation, after forty-eight hoursnotice
to the incarcerating creditor or his known agent
of the motion for liberation,and (^) on caution (^) being
found for such amount as the sheriff may deem
reasonable for the applicant's appearance at all diets
10
[39 & 40 VICT.] (^) SheriffCourts (Scotland). [CH. 70.]
of the process, and also binding the cautioner to A.D.^ 1876.
present the applicant at the (^) prison for re-incar- ceration shouldthe cessio be (^) refused or the interim warrant recalled:
Judgments or interlocutors pronounced in such actions shall
be reviewed on appeal in the same form and subject to
the like provisions, restrictions, and conditions as are by
law provided inregard to appeals against anyjudgment or
interlocutor pronounced in any other action in the sheriff's
ordinary court; butwarrants ofinterimprotectionor interim
liberation (^) shall become effectual when granted, and remain good tillrecalled :
Any notices or intimations required by law to be given to
creditors shall be sufficiently given in the case of creditors
furth of Scotland if given to their known. agents or man-
datories in Scotland.
VI.-Appeals.
27. The^ following,^ and^ no^ other,^ appeals^ to^ the^ sheriff^ against
judgments or interlocutors of the sheriff substitute shall be com-
petent ; that^ is^ to^ say,^ an^ appeal^ against^ a^ final^ judgment^ or^ an appeal against an^ interlocutor,- (l.) Granting or refusing^ interdict,^ interim^ or^ final;^ or,
(2.) Granting interim^ decree^ for^ money,^ or^ making^ an^ order^ ad
factum praestandum, or sisting^ an action ;^ or,
(3.) Allowing,or^ refusing,^ or^ limitingthe^ mode^ of^ proof;^ or,
(4.) Against which^ the^ sheriff^ substitute,^ either^ ex^ proprio^ motu or on the motion^ ofa^ party,^ grantsleave^ to^ appeal.
- An^ appeal^ to^ the^ sheriff^ may,^ when^ competent,^ be^ taken^ by
a note of appeal written at^ the^ end^ or^ on^ the^ margin^ of^ the^ inter-
locutor sheet^ containing^ thejudgment^ orinterlocutorappealedfrom,
within seven^ days^ after^ the^ date^ of^ such^ judgment^ or^ interlocutor,
in thefollowing or^ similar^ terms:
"The pursuer^ [or^ defender^ or^ other^ party]^ appeals^ to^ the sheriff:" Thenote^ shall^ be^ signed^ by^ the^ appellant^ or^ his^ agent,^ and^ shall
bearthedate^ onwhich^ it^ is^ signed.^ If^ theinterlocutor^ sheet^ is^ not
in the hands of^ the^ sheriff^ clerk^ (which^ fact^ shall^ be^ certified^ by
him) the note may^ be^ written,^ signed,^ and^ dated^ 'as^ aforesaid^ on^ a separate paper, prefixing^ merely^ the^ name^ of^ the^ cause^ and^ the date of the^ interlocutor^ appealed^ from,^ and^ having^ annexed^ a^ cer-
Whatap- peals com- petentbefore finaljudg- ment.
Note ofap- peal against judgment of the sheriff substitute.
tificate bythe^ sheriffclerk^ tothe^ effect^ foresaid: 11
[39 & 40 VrcT.] Sheriff (^) Courts (Scotland). [CH. (^) 70.]
Anappeal shallnot prevent the immediate executionof a warrant
of sequestration forrent,^ or^ a^ warrant to takeinventories, or place
effects in custody ad interim., or other warrants of interim
preservation.
32. Notwithstanding anything contained in section sixty-eight
of the Court of SessionAct, 1868, extract ofanyjudgment, decree,
interlocutor, or order pronounced inthe ordinary sheriff courtmay
be issued at any time on the expiration of fourteendays from the date thereof, unless the same shall, if competent, have been sooner appealed against, and no extract of any such judgment, decree,
interlocutor,or ordershall beissuedbeforetheexpiration offourteen
daysfrom thedatethereof, unless thesherifforsheriff substitutewho
pronouncedthe same shallallow the extractto be sooner issued.
A.D. 1876.
When judg- ment, &c. may be extracted if no appeal.
33. Notwithstanding^ the^ provisions^ of^ this^ Act^ relating^ to^ Final^ judg-
a peals, an appeal to^ the^ sheriff^ may be^ competently taken^
ments may Pl y^ be^ appealed
against any final judgment^ pronounced^ by^ a^ sheriff^ substitute^ at^ within month,^ oneif
anytime within one month^ of^ its^ date,^ if^ the^ same^ shall^ not^ have^ not sooner
been sooner extracted or^ implemented.^ extractedimplemented.^ or
- Atany^ time^ before^ the^ transmission^ of^ a^ process^ in^ which^ Correction
an appealhas^ been^ taken^ to^ the^ sheriff,the^ sheriff^ substitute^ may^ of^ accidental
competently correct^ any^ merely^ clerical^ or^ accidental^ errorin^ his^ judgments.
judgment; and^ in^ like^ manner^ the^ sheriff^ may^ competently^ correct
any such error^ in^ a^ judgment^ pronounced^ by^ him^ before^ extract
thereof or appeal therefrom^ to^ theCourt^ of^ Session.
VII.-The Commissary Courts^ abolished.
35. From^ andafter^ the^ commencement^ of^ this^ Act^ thecommis-^ Commissary
sary courts in^ Scotland^ shall^ be^ and^ thesame^ are^ hereby^ abolished,^ abolished,courts
and the^ whole^ powers^ and^ jurisdictions^ of^ the^ commissary^ court^ in^ and^ powers
each commissariot shall^ be^ and^ the^ same^ are^ herebytransferred.^ to^ transferred
the sheriff in^ office^ atthe^ commencement^ of^ this^ Actas^ the^ com-^
to sheriffs.
missary of^ such^ commissariot,^ who^ shall^ thereafter,^ and^ his^ succes-
sors in office as sheriff,^ possess^ and^ exercise^ the^ whole^ of^ the^ said
powers and jurisdictions in^ all^ respects:^ Provided^ that^ it^ shall
still be^ competent^ and^ proper^ to^ affix^ the^ seal^ of^ office^ of^ a^ commis-
sariot to all^ documents^ to^ which^ it^ would^ have^ been^ competentand
properto^ affix^ the^ same^ before^ the^ commencementofthis^ Act.
36. In everycase in^ whichin^ anysheriffdom^ the^ offices^ ofsheriff^ Office^ of
m is
ary
clerk and of^ commissary^ clerk^ shall^ at^ the^ commencement^ of^
cleommi
this Act be united^ in^ the^ same^ person,^ who^ is^ remunerated^ by^ certaincases
salary for discharging the^ duties^ of^ both^ offices,^ the^ office^ of^ com-^
abolished. 13
A.D. 1876.
Vacancies in office of commissary clerk not to be supplied. All commis- sary clerks, except in Edinburgh, to be abo- lished on vacancies occurring.
Commissary clerks con- tinuing in office to perform the duties in the sheriffcourt.
Provisionsto haveeffecton the abolition ofthe office of commis- sary (^) clerk.
[Cu. (^) 70.] Sheriff Courts (Scotland). [39^ &^40 VICT.]
missary clerk shall be as from the said date and the same is^ hereby abolished, and the (^) whole powers and duties of the office of com- missary (^) clerk shallbe as fromthe said date and the same are hereby
transferred to the office of sheriff clerk, and the sheriff^ clerk^ shall
thereafter, and his successors in office as sheriff clerk, possess and
exercise the whole of the said powers and perform the whole of the said duties.
37. No^ vacancy^ existing^ at^ the^ commencement^ of^ this^ Act^ or
whichmaythereafteroccurintheoffice ofacommissary clerk, except
the office of thecommissary clerk ofEdinburgh, shall be supplied,.
- Ineverycase^ ofavacancy^ occurring^ afterthe^ commencement
ofthis Act inthe office of commissary clerkin any commissariot in
Scotland,except the commissariot ofEdinburgh,suchoffice shallbe,
as fromthe date of the occurrence of such vacancy, abolished, and
the whole powers and duties of the office of commissaryclerk shall
be transferredto theofficeof the sheriffclerk ofthe county,and the
sheriffclerk of the county shall thereafter, and his successors in
office as sheriff clerk, possess and exercise the whole of the said
powers and performthe whole ofthe^ said^ duties.
- From and after the commencement of thisAct every com-
missary clerk whose office shall not be forthwith abolished under
the provisions of this Act, shall perform inthe sheriff court of the
county all the duties and exercise all the powers heretofore per-
formed and exercised byhim in the commissary court; provided
thatsuch commissary clerk shall not be disabled from acting as a
procurator in the sheriff court, except incauses inwhich lie acts as
clerk of court.
- Onthe office ofcommissary clerkbeinginany case (^) abolished
under the provisions herein-before contained, the following pro-
visions shall have effect :
(l.) All records, books, documents, papers, and (^) things belonging
to the office of the commissary clerk or inthe possession of
any clerk or officer of thatoffice as such, shall' (^) be forthwith
transferred to theoffice or offices of the sheriff clerk of the
county. t,2. It^ shall be^ lawful^ for^ the^ Lords^ Commissioners^ of Her
Majesty's Treasury^ to^ regulate^ the^ office of such sheriff
clerk, and out of moneys^ to be voted by Parliament to
award him^ such^ salary^ or^ personal^ remuneration,^ together
with such allowances^ for^ clerks^ and^ office^ expenses, as shall
seem just,^ having^ regard^ to^ the^ additional^ duties imposed 14
A.D. (^) 1876.
Confirmation of Scotch estate (^) with note of trust funds in England or Irelandto be sealed in Probate
Courts as if
itcontained English or Irish estate of the deceased.
Schedule C. of 21 & (^22) Viet. c. 56. hereby repealed,and new form of intimation, &c.
Acalendar of confirmations and inven-
[CH. 70.] Sheriff Courts^ (Scotland). [39^ & 40 VzcT.]
additional (^) inventory confirmed shall not contain any estate of the
deceased situated in Scotland, and such additional confirmation
when so sealed shall thereafter have the same force and effect as if
probate or letters of administration, as the case may be, had (^) been
granted by the court of probatein which it had been sealed.
43. When^ any^ confirmation or additional confirmation of
personal estate situated in (^) Scotland, which shall contain or have
appended thereto and signed by the sheriff clerk a note or state-
ment of funds in England or Ireland, or both, held by the deceased
in trust, shall be produced in the principal Court of Probate in
England or in^ the Court of Probatein Dublin, as thecase may be,
such confirmation shall be sealed with the seal of such courtin the
same manneras is provided by sections twelve and thirteen of the
Act passed in the twenty-first andtwenty-second years of the reign
of Her present Majesty, chapter fifty-six, as amended by this Act,
with respectto sealing confirmations which include personal estate
situated in England or Ireland respectively; and such confirma-
tion shall thereafterhave the like force and effect inEngland and
Irelandwithrespecttosuchfundsas if probate or lettersof adminis-
tration, as the case may be, had been granted by the Court of
Probate in which ithad been sealed ; and such note or statement
may be inserted or appended as aforesaid by the sheriff clerk,
provided the same shall have been set forth in any inventory
which has been recorded in the books of the court of whichhe is
clerk.
- The^ sheriff clerk^ shall,^ after^ a petition for the appoint-
ment of an executor has been intimated by him as provided
by section four of the Act passed in the twenty-first and
twenty-second years of the reign of Her presentMajesty, chapter
fifty-six, and^ after^ receiving the certified copy of the printed
and published particulars therein set forth, forthwith certify
these facts^ on^ the^ petition^ in the following or similar terms :
GL Intimated andpublished in terms of the statute," which certi-
ficate (in lieu of the certificate inthe formof Schedule C. annexed
to the said^ Act,^ which^ Schedule^ C. is hereby repealed,)shall be
dated and signed^ by^ him,^ and shall be sufficient evidence of the
facts therein^ set^ forth:^ Provided^ always, that special intimation
shall be made^ to^ all^ executors already decerned (^) or confirmed (^) to
a deceased person of^ any subsequent^ petition for theappointment
of an^ executor^ which^ may^ be^ presented^ with reference to the
personal estate^ ofthe^ same^ deceased^ person.
45. It^ shall^ be^ the^ duty^ of^ the^ commissary^ clerk^ of Edinburgh
on or before the^ thirty-firstday^ of^ Decemberone thousand eight
16
[30 & 40 Vicr.] SheriffCourts (Scotland). [C11. 70.]
hundred and seventy-seven, and on or before the thirty-first day of
December in every year thereafter, to prepare and issue a printed
calendar containing a list or register, alphabetically arranged, ofall
confirmations granted, and of all inventories given in, in cases in
whichfrom^ any^ cause^ confirmation^ shall^ not have beenrequired in
Scotland, in^ the^ year^ ending^ on the thirty-first day of December
immediately preceding, specifying in each case the name and
designation, and the place and date ofdeath ofthe person deceased;
whether he^ diedtestate^ or^ intestate^ ;^ the^ names^ and^ designations of
his executors; date of confirmation or recording of inventory; the
date of the^ will^ or^ deed,^ if^ any^ ;^ and^ where^ and^ of^ what date the
same was registered;^ and^ the^ value^ of^ the, estate: Provided as
follows : (1.) It shall be the^ duty of^ every sheriff clerk to furnish
to the commissary clerk of Edinburgh on or before the
fifteenth day^ of^ February^ one^ thousand^ eight^ hundred^ and
seventy-seven such^ a^ list^ or^ register^ of^ confirmations
granted, and inventories^ given^ in,^ within the^ sheriffdom
ofwhich he is such^ clerk^ (with^ all^ the particulars above
specified) in^ the^ year^ ending^ on^ the^ thirty-first^ day^ of
December immediately preceding;^ and^ thereafter^ quarterly,
on or before the first days^ of^ February,^ May, August, and
Novemberin^ eachyear,^ to^ furnish^ to^ the^ commissary^ clerk
ofEdinburgh^ such^ a^ list^ or^ register,^ with^ such^ particulars
as aforesaid, of^ all^ confirmationsand^ inventories^ granted,^ or
given in, within such^ sheriffdom^ in^ the^ quarters^ ending^ on
the thirty-first day^ of^ December,^ the^ thirty-first^ day^ of
March, the thirtieth^ day^ ofJune,^ and^ the^ thirtieth^ day^ of
September immediately^ preceding^ respectively^ :
(2.) A copy of^ every^ such^ calendar^ issued^ shall^ be^ sent^ by^ the
commissary clerk^ of^ Edinburgh^ to^ every^ sheriff^ clerk^ in
Scotland, who^ shallkeep^ thesame^ in^ his^ office^ open^ for^ the
inspection of^ the^ publicon^ payment^ of^ such^ fee^ as^ may^ be
fixed by^ act^ of^ sederunt,^ which^ the^ Court^ of^ Session^ are
hereby authorised^ and^ required^ topass^ :
(3.) A copy^ of^ every^ issue^ ofsuch^ calendar^ shall^ also^ be^ sent^ to
the Lord^ Clerk^ Register^ andto^ the^ registrars^ in^ the^ Probate
Courts ofLondon^ and^ Dublin:
(4.) The cost ofpreparing^ andprinting^ and^ issuing^ suchcalendar
and of furnishing copies^ thereofto^ thepersons^ to^ whom^ they
are herein directed^ to^ be^ sent^ shall^ be^ defrayed^ out^ of
moneys to^ be^ voted^ by^ Parliament.
[Public.-70.] Y^ 1.
A.D. 1876. tories to be published annually.
