N° IV.

Act of Sederunt

relative to the

Form of Process

No IV.

ACT OF SEDERUNT relative to the Form of Process before the Court of the
Commissaries of Edinburgh.

Edinburgh, 12th November 1825.

THE Lords of Council and Session, and Lord Chief Commissioner of the Jury Court, taking into consideration an Act of Parliament passed in the sixth year of His present Majesty's reign, intituled, "An Act for the better regulating of the before "Forms of Process in the Courts of Law in Scotland," by which Act they are required to make such orders and regulations concerning the Forms of Process in the Court of the Commissaries of Edinburgh, as may most effectually carry into execution the purposes of the said Act; do hereby Enact and Declare, That from and after this date, the following regulations shall take place in the Court of the Commissaries of Edinburgh, in furtherance of the provisions of the said Act:

1st. That from and after this date, in all actions in the Court of the Commissaries of Edinburgh, the pursuer or pursuers shall, in the summons set forth in explicit terms, the nature, extent, and grounds of the complaint or cause of action, and the conclusions which, according to the form of the particular action, the said pursuer or pursuers shall, by the law and practice of Scotland, be entitled to deduce therefrom; and, in like manner, the defender or defenders shall, in the defences, state, in explicit terms, every defence, both dilatory and peremptory, on which he or they means or mean to rely; and shall, in particular, meet the statement of facts and the conclusions deduced from them in the pursuer's summons, either by denying the facts therein stated, or by admitting the same; and, in answer, setting forth in explicit terms the facts on which the said defender or defenders found, subjoining a summary of the pleas in law, which are to be maintained by such defender or defenders.

2. That, along with the summons, and with the defences, the parties shall respectively produce the deeds or writings on which they respectively found, so far as the same are in their custody, or within their power.

3. That in causes where the defender shall make appearance, and neither party shall abandon the cause, the Court shall not proceed to give judgment upon the merits of the cause, until the respective averments of the parties in fact, and their pleas in matter of law, shall, as hereinafter directed, be set forth on the record, and the record made up and authenticated in manner hereinafter appointed.

4. That it shall be the duty of the Court, at the first calling of the cause after defences are lodged, to hear the parties on the dilatory defences, with power to reserve consideration of such dilatory defences as require probation until the peremptory defences shall be pleaded, and the record adjusted in the manner hereinafter directed; and if the Court shall sustain the dilatory defences, or any of them, to the effect of dismissing the action, the Court shall, at the same time, determine the matter of expenses; but if, on the contrary, the Court shall repel the dilatory defences, the cause shall then, with the exception hereinafter to be mentioned, proceed in its due course of preparation, without any separate interlocutor being pronounced respecting expenses, reserving this part of the expense to be disposed of, along with the rest of the expense in the final decision of the cause; and the judgment on the dilatory defences shall be final, unless the party dissatisfied with the judgment shall, within twenty-one days from and after the date of the judgment, apply by one reclaiming petition only to have such judgment reviewed; in which case the Court, instead of proceeding with the preparation of the cause, shall forthwith give judgment on said petition, with or without answers, and for the expense of that preliminary discussion; and an interim decree, with the expense of extract, shall be allowed to go out for the expenses, for which judgment shall have been given.

5. That where no dilatory defence shall have been stated, or in case all dilatory defences have been finally repelled, the Court shall proceed to examine into the correctness of the summons, and of the peremptory defences; and if it shall appear to the Court that the grounds of action, as set forth in the summons, are in terms not sufficiently positive and clear, or the conclusion not regularly or legally deduced

according

of Edinburgh :

12 Nov. 1825.

according to the form and nature of the action and the laws and practice of Scotland, before the Court of the Court may either dismiss the action or order an amendment of the libel, and the Commissaries give interim deeree against the pursuer for the expenses occasioned by the incorrect form of the summons, reserving to the pursuer to bring a new action if otherwise competent; on which interim decree, if necessary, execution may proceed forthwith; and in like manner, if it shall appear to the Court that the defender has not set forth his peremptory defences or exceptions in terms sufficiently clear in point of fact, and with due correctness in point of law, the Court may order defences more satisfactory and correct to be given in, and give decree against the defender for the expense occasioned by his imperfect or evasive defences; and the expenses awarded in this preliminary adjustment of the summons and defences, when an amended summons or additional defences shall be ordered, shall, at lodging such amended summons or defences, be paid over to the clerk for behoof of the pursuer or of the defender, as the case may be, without which the amended summons or defences shall not be received; and the determination of the Court, thus dismissing the action or ordering an amendment of the libel, or more satisfactory defences, with expenses, shall be final, unless within twenty-one days from the date of the interlocutor, application shall be made by one reclaiming petition only to have the interlocutor reviewed.

6. That where the Court shall be satisfied that the sunimons and defences are in point of fact sufficiently explicit, and correctly deduced in point of law, and that no further disclosure of facts or of pleas is necessary for the due preparation of the cause for trial, the Court shall require the parties to state positively whether they are willing to hold the summons and defences as containing their full and final statement. of facts and pleas in law; and if they agree so to do, then the clerk shall set forth in a minute their assent to that effect, which shall be signed by the counsel or solicitor on each side, and the record shall forthwith be completed as hereinafter directed.

7. That where the parties do not agree to hold the summons and defences as setting forth fully the facts and pleas respectively founded on, or where the Court shall think fit, an order shall be made on the pursuer or defender, as the case may be, to give in, the one a condescendence, the other an answer or mutual condescendences, setting forth, without argument, the facts which they aver and offer to prove in support of the summons and defences; and in such condescendence, answers or mutual condescendences, the parties shall in substantive propositions, and under distinct heads or articles, set forth all facts and circumstances pertinent to the cause of action or to the defence, and which they respectively allege and offer to prove; and along with such condescendence or answer or mutual condescendences the parties shall respectively produce all writings in their custody or within their power, not already produced, on which they mean to found.

8. That as soon as the condescendences or condescendence and answers shall be lodged, the parties shall respectively revise their condescendences and answers, and make such alterations thereon as may appear to them to be necessary in order fully to meet the opposite averments; and in order that the averments of the parties may be finally adjusted with due regard to the matter of law to be maintained by them respectively, each of the parties shall, along with the copy of his revised condescendence or answer, lodge with the clerk, previous to the final adjustment of the record, a short and concise note drawn and signed by counsel or the solicitors of the pleas in law, on which the action or defence is maintained; and in such notes the matter of law so to be stated shall be set forth in distinct and separate propositions without argument, but accompanied by a reference to the authorities relied on.

9. That the parties shall appear before the Court, by their counsel or procurators, for the purpose of finally adjusting their respective averments in fact, and their notes of pleas, when the Court shall hear the respective explanations of the parties, (and examine, as before directed,) the statement of the facts respectively, and of the pleas as applicable to the summons and cause of action, and to the defence, and suggest any new plea which may appear necessary to exhaust the whole disputable matter in law or fact in the cause; after which the adjusted condescendences and answers and relative notes shall be subscribed by the counsel or solicitors for the parties; and before any order shall be pronounced or judgment given as to the disposal of the cause, the record of the pleadings as adjusted shall be authenticated by the signature of the presiding judge, and the record so made up and authenticated shall be held

N° IV. Act of Sederunt relative to the Form of Process

as foreclosing the parties from the statement of any new averments in point of fact; and no amendment of the libel or new ground of defence shall be allowed after the record shall have been thus completed under the exception hereafter to be before mentioned; the pursuer having it in his power notwithstanding to abandon the cause before absolvitor on paying full expenses to the defender, and to bring a new action if otherwise competent: Provided always, that it shall be competent to either party in the course of a cause, to state matter of fact noviter veniens ad notitiam, or emerging since commencement of the action, if, on cause shewn, leave shall be obtained from the Court so to do, the said party always paying, previous to stating such new matter on the record, such expenses as may be deemed reasonable by the Court; and if leave be granted, the new matter shall, within a time to be limited, be stated in the shape of a specific condescendence framed as above, accompanied by a note stating the plea in law arising therefrom; and the adverse party shall in such case be ordered, within a reasonable time, to put in his answer to such condescendence and plea, to be adjusted and made a part of the record as before directed.

10. That the plea stated in the record, and authenticated as before directed, shall be held as the sole grounds of action or of defence in point of law, and to which the future arguments of parties shall be confined: Provided always, that where any new plea or ground in law shall, after the completion of the record as before, be in the course of the cause suggested by the Court, or by the party, as fit to be discussed in relation to the facts already set forth, it shall and may be competent, with leave of the Court, to add such plea to the note of pleas authenticated by the presiding judge as before.

11. That the Court shall in every instance, on due consideration of the circumstances, fix the time with which such condescendences and answers shall be lodged, and such time shall not be prorogated, except on payment of the expenses previously incurred, unless before the lapse of the time so fixed special application shall be made for such prorogation; nor shall the prorogation in any instance be granted except on cause shewn, nor oftener than once; and if the party shall fail to lodge his condescendence or answers, as the case may be, within the time originally fixed, or afterwards prorogated, the Court may hold the summons or defences for such party as his condescendence or answers, finally fixing the averments in point of fact on which he founds.

12. That after the record of the averments and pleas shall have been adjusted and closed as hereinbefore directed, and when it shall appear that the parties have respectively admitted, on the record, all the facts requisite to the decision of the cause, so as to render any proof of the facts unnecessary, the Court may proceed to decide the cause with or without further argument.

13. That when the parties differ as to facts, the Court shall give such orders and directions for the ascertainment of the facts by proof, as shall appear expedient.

14. That where a cause is by means of admissions of proof, or from the nature of the cause, deemed fit to be determined, the Court may decide the cause or matter to be determined, or may order the parties to argue the whole or any part of the cause, as often as necessary, or direct cases to be prepared by the parties, and to be seen, interchanged, and finally adjusted; and for compelling obedience to such order, the Court are hereby required and enjoined to make effectual regulations for that purpose; and after such cases shall have been so lodged, the parties shall have the opportunity of being further heard, if they or either them shall desire it.

15. That, in pronouncing judgment on the merits of the cause, the Court shall specify such facts as they find to be proved, and shall also determine the matter of expenses, as far as not already settled, either giving or refusing the same in whole or in part.

16. That when any interlocutor shall have been pronounced, either of the parties dissatisfied therewith shall be entitled to apply for a review of it by one reclaiming petition only, within twenty-one days from the date of the interlocutor, which petition may be allowed to be answered within twenty-one days from the date of the interlocutor allowing the answer; and in all causes, before pronouncing judgment, it shall be in the power of the Court to order an argument by counsel or solicitors as often as they see fit, and on the whole, or on such parts of the cause, as shall seem to the Court to require farther argument.

17. That

17. That from and after this date, the subsisting forms of edictal citation, charge, before the Court of publication, citation, and service at the Market Cross of Edinburgh, Pier and Shore the Commissaries in Edinburgh; of Leith, and against persons forth of Scotland, shall cease and be discontinued ; 12 Nov. 1825. and in lieu thereof such edictal citations and services, as against persons forth of Scotland, shall be done and performed by delivery of a copy thereof at the Record Office of the Keeper of the Records of the Court of Session, in the manner now practised in cases of citation or charge, at the dwelling house of a party not personally apprehended; all in terms of the 51st and 52d sections of the Act, the said Keeper keeping a separate book or column for the Commissary Court of Edinburgh.

18. That from and after this date, the practice of citing defenders to appear at two diets of Courts, shall in all cases cease, and all summonses shall thenceforward proceed on one diet only; viz. privileged summonses against defenders within Scotland, on one diet of six days; other summonses against defenders residing in Orkney and Shetland, on a diet of forty days; and for all other persons within Scotland, on a diet of twenty-seven days; and for defenders out of Scotland, on a diet of sixty days; and it is hereby Provided and Declared, That where a person not having a dwelling house occupied by his family or servants, shall have left his usual place of residence, and have been therefrom absent during the space of forty days, without having left notice where he is to be found within Scotland, he shall be held to be absent from Scotland, and be charged or cited according to the forms herein prescribed accordingly.

19. That whereas, by the Act of 4th Geo. IV. chap. 98, in the case of confirmation by executors creditors, it is provided, "That notice of every application for "confirmation by any executors creditor shall be inserted in the Edinburgh Gazette, "at least once immediately after such application shall be made in evidence, "whereof a copy of the Gazette in which such notice shall have been inserted, "shall be produced in Court before any such confirmation shall be further pro"ceeded in." And in order to give full effect to the provisions in the said Act, it is Enacted and Declared, That every such creditor shall insert in the Gazette, within ten days after the edict has been signed by the clerk, the notice of the application for confirmation as provided by said Act, and produce in the clerk's hands a copy the Gazette along with the edict, before being decerned executor creditor.

of

20. And if in practice any further regulations shall be found necessary for carrying the said Act of Parliament, or this form of process into execution, the Commissaries are hereby required to make the same, and report them to the Court of Session for its approbation.

And the Lords appoint this Act to be inserted in the books of Sederunt, and printed and published in the usual manner.

Edinburgh, 7th February 1826.

C. HOPE, Lord President.

Compared by me, Assistant to Sir Walter Scott, Bart.

one of the Principal Clerks of Session,

Wm. Carmichael.

N° V.

Act of Sederunt

relative to the

Form of Process

in

No V.

ACT OF SEDERUNT relative to the Form of Process in Civil Causes before the Sheriff Courts.

Edinburgh, 12th November 1825. THE Lords of Council and Session, and the Lord Chief Commissioner of the Jury Court, taking into consideration an Act passed in the sixth year of His present Majesty, intituled, " An Act for the better regulating of the Forms of "Process in the Courts of Law in Scotland," by which Act they are required to make such regulations and orders relative to the forms of proceeding in the inferior Courts, as may be best calculated to carry into execution the purposes of said Act; do hereby Enact and Declare, That the following Forms of Process in civil causes before the Sheriff Courts, shall be established and observed in the said Courts accordingly :

FORM OF PROCESS

In Civil Causes, to be observed in Sheriff Courts in Scotland.

PART I.

OF ORDINARY CIVIL ACTIONS.

CHAP. I.-Diets and Sessions of Court.

Sect. 1. Each Sheriff Court shall sit for the dispatch of ordinary business, at least one day in every week during the Summer and Winter sessions; such day to be fixed by the Sheriff in each county, by a regulation of Court.

Sect. 2. The Winter session shall commence at the latest on the 15th of October, or first ordinary Court day thereafter, and shall continue until the 4th day of April inclusive, excepting during the Christmas recess, which must not be longer than three weeks. The Summer session shall commence on the first Court day after the 15th day of May, and continue until the last Court day in July.

Sect. 3. It shall be competent to each Sheriff to extend the duration of the sessions by a regulation of Court, and in particular to appoint Court days during the vacation.

Sect. 4. During the vacations, summary applications shall be received, and interlocutors in summary cases shall be dated and entered in the minute book, as in time of session.

Sect. 5. The Sheriff of each county shall, before the termination of each session, appoint at least two days during each vacation, the first towards the middle, the last towards the end of the vacation, on which days papers may be appointed to be put into process.

Sect. 6. For six days after each of these days, it shall be competent for the Sheriff to sign interlocutors in ordinary causes.

Sect. 7. The reclaiming days shall run during the vacation.

CHAP. II.-Formality of the Summons.

Sect. 1. All defenders shall be cited upon a summons, signed by the clerk, fully libelled, and having the name of the pursuer's procurator marked on the back. The summons must contain a concise and accurate state of the facts, and must also set forth, in explicit terms, the nature, extent, and grounds of the complaint, or cause of action, and the conclusions deduced therefrom; it shall bear a partibus for calling; the sums concluded for shall be marked in figures on the margin; the true date of signing shall be filled up; and the clerk is discharged from calling any summons that is not fully libelled, marked and signed as directed.

Sect. 2. Not more than six defenders, on separate grounds of action, shall be included in one libel, except in actions of multiplepoinding, maills, and duties, poinding of the ground, and forthcoming.

Sect. 3. No libel shall be amended after citation is given thereon, except by authority of the Sheriff.

Sect. 4. Every libel or summons may also contain a warrant for arresting the defender's effects and debts, on the dependence.