manner as in summary causes in such Court, and to suspend the charge and diligence so far as regards the petr.'

"The natural meaning of the words 'sufficient caution' in this section is caution sufficient for securing the rights of the creditor, which juratory caution almost never is. This view is strongly supported by the A. S. (s. 116), which was passed to carry out the statute. In the chap. xx., 'Suspensions in SheriffCourts,' it makes no provision as to juratory caution, but repeats almost the ipsissima verba of the statute, and in particular uses the words sufficient caution.' "In the following chapter, xxi., Advocations, Suspensions in the Court of Session, and Lists,' it makes careful provisions as to juratory caution, all of which are pointedly applied only to advocations.

"The inference is clear and cogent,-that the Court of Session have by that A. S. interpreted the words 'sufficient caution' in the statute as meaning caution by a solvent person for the full amount of the debt and costs, and as contradistinguished from juratory caution, which is almost always illusory and insufficient.

"This view is supported by the high authority of Erskine, iv. 3, 19, where 'juratory caution' is spoken of in contradistinction to 'sufficient caution.' The work of Mr. Maclaurin on Practice in the Sheriff-Courts, p. 347, and the uniform practice of this Court since the statute was passed, are to the same effect; and the petr. was unable to say that a different practice existed in any other Sheriff-Court.

"As the jurisdiction of the Sheriff-Court in suspensions is entirely statutory, it can only be exercised under the conditions which the statute prescribes. The petr. may still apply to the Court of Session to suspend the diligence in question, either on juratory caution, or without caution at all, although an inferior Court can only stop the ordinary course of such diligence on sufficient security for the creditor's protection.

"The petr. however contended that the juratory caution which he has found is sufficient, seeing that he has given up in the inventory of his debts and effects a debt 'supposed to be about £50,' due to him by Hislop and Rae of Glassford Street, Glasgow, of which he cannot receive payment without subjecting himself to punishment for fraud (A. S. 1839, s. 124).

This is considered to be erroneous, for (1) the inventory does not operate as an attachment of the debt referred to; (2) the amount is only 'supposed to be about £50,' which is not merely indefinite in amount, but, if taken to mean fully £50, might be insufficient to cover the sum charged for, and interest and expenses; (3) the security, such as it is, under the inventory is not found in the hands of the Clerk of Court or to his satisfaction; and (4) its sufficiency depends on the petr.'s claim on Messrs. Hislop and Rae being good,-which is not admitted or proved, and on these gentlemen being solvent, which they may no doubt be, but as to which the Court has not judicial knowledge, and has no security, as in the case of a bond by a cautioner accepted as sufficient by the Clerk of Court.

"It was also urged that the respt., under the interlocutor of 28th November last, can only at this stage lodge a minute of defence, or have a record made up on condescendence and defences (which forms have come in place of the answers required by the clause of the statute above quoted). As, however, the deliverances on the petition regarding juratory caution were all under reservation of the pleas of parties, it is considered still competent to the respt. to insist on the petr. finding sufficient caution' as a statutory preliminary to all the proceedings on the petition. W. G. D."

On appeal, the Sheriff adhered (16th February 1874) to his own interlocutor as S.-S. The suspension was afterwards refused, no caution having been found. Act.-Lang.-Alt.-Spens.

VOL. XVIII. NO. CCXII.—AUGUST 1874.

21

Before Sheriff GUTHRIE.

SCOTTISH HERITABLE SECURITIES COMPANY v. LAUDER.—10th June 1874.

Decree in absence-Entering appearance-Reponing. In this case the pursuers obtained decree in absence on 26th March, appearance having been entered for the defr., who afterwards failed to state a defence. The defr. afterwards presented a reponing petition along with defences in terms of the Act of Sed. 10th July 1839, secs. 24, 115. The pursuers objected to the competency of the reponing petition, contending that that form of procedure had been abolished by the Act of 1853. The S.-S. pronounced the following interlocutor:

"Glasgow, 10th June 1874.-Having heard parties' procurators, and considered the petition, in respect the defr. has consigned in the hands of the Sheriff-Clerk the expenses decerned for in the decree pronounced against the defr. on 17th April 1874, repones the defr. against said decree; revives the action; allows the defences now tendered to be received; and appoints the defr. to intimate to the pursuers within six days the enrolment of the cause on 18th instant, and remits the cause to that roll for further procedure. W. GUTHRIE.

"Note.-It was contended for the pursuers, that reponing in this form was incompetent, the Act 1 & 2 Vict. c. 119, sec. 18, and the Act of Sederunt following on it (secs. 24 and 115), having been repealed by the Act of 1853. The S.-S. however cannot adopt that view, for the repeal of previous Acts of Parliament and Acts of Sederunt in sec. 51 of that Act, extends 'in so far only as may be necessary to give effect to the provisions of this Act, and no farther or otherwise.' The Act of 1853 provides in sec. 2 a form of reponing, 'where no appearance shall be entered for the defr.'-the most usual case in which decrees in absence are pronounced. But, whether by accident or design, it says nothing with regard to decrees in absence pronounced where appearance has been entered, but has been withdrawn or fallen from before defences are proponed. A decree pronounced in that case is undoubtedly a decree in absence (Ersk. Inst. iv. 1, 69; iv. 3, 6, Stat. 1672, c. 16, sec. 19 (Reg. of Jud.); 31 & 32 Vict. c. 100, sec. 22), to which therefore the regulations of the Act of Sederunt of 10th July 1839, secs. 24 and 115, continue to be applicable. See Wilson v. State Fire Insurance Company, July 14, 1863, 35 Jur. 635.

"The defr. has lodged defences in conformity with a common practice; but it seems reasonable to hold that the requirement that a defr. shall lodge defences along with his reponing petition has been repealed by sec. 51 of the Act of 1853, the provisions of which Act as to stating defences cannot otherwise receive full effect. W. G."

Before Sheriff DICKSON.

CHARD V. M'CULLOCH.-July 7, 1874.

Sheriff-Appeal-Decree in absence-Reponing-Sheriff Court Act, 1853.—This was an action by a stockbroker for the amount of differences and commission on stockbroking transactions, in which the pursuer obtained a decree in absence on March 26th. The defr. presented a reponing petition, accompanied by defences in terms of the Act of Sed. 10th July 1839, secs. 24, 115, and craved to be reponed, without any costs being found due. The S.-S. reponed in usual form, and sent the case to the roll, that parties might be heard as to the craving in regard to costs. The pursuer appealed. The Sheriff found the interlocutor not appealable, adding this note: The appeal is against an interlocutor reponing the defender against a decree pronounced against him on account of failure to state a defence.

"The pursuer's procurator contended that such an interlocutor 'disposes of the merits of the cause,' seeing it deprives him of the judgment by default in his favour, and that it is therefore appealable under s. 19 of the Sheriff Court Act of 1853. To the Sheriff this appears erroneous. The interlocutor appealed

against was pronounced in order to enable the Court to entertain the merits, which till then it had not done. It was merely a step in the progress of the cause for removing the obstacle of a judgment not pronounced on the merits, and which stood in the way of a judgment on the merits being pronounced.

"There is no direct authority, and little of any kind, on the point. The case of M'Dowall v. Brown 1865 (3 Macph. 1079), however, supports the view taken above.

"The Sheriff avoids expressing any opinion as to the competency of the reponing, as that is not now before him. W. G. D."

On 8th June the S.-S. found the pursuer entitled to £1, 11s. 6d. of the consigned expenses, and authorised the Clerk of Court to pay over the sum to the pursuer, and allowed the decree to be extracted as an interim decree, and decerned.

Both parties appealed.

The Sheriff pronounced the following interlocutor :

"Glasgow, 7th July 1874.-In respect the defr.'s procurator stated at the bar that he did not insist in his appeal, dismisses it; and having heard parties' procurators on the pursuer's appeal, and considered the process, for the reasons stated in the note, adheres to the interlocutor appealed, and dismisses the appeal. W. G. DICKSON.

"Note.-It was contended for the defr. that the pursuer's appeal is incompetent, because the interlocutor of 8th June is not within any of the classes of interlocutors described in section 19 of the Sheriff Court Act of 1853; and that the words 'decree' and 'decerns' in the interlocutor have no proper meaning, as it is merely an order on the Clerk of Court to pay a specified sum to the pursuer out of the consigned money.

"The Sheriff cannot so read the interlocutor. It finds the defr. liable in a certain sum, and decerns.

"That is considered to be a decree for the sum so found due upon which diligence might follow; and its character as such is not destroyed by there being an order on the Clerk of Court to pay part of the consigned sum to the pursuer, seeing that the pursuer is not bound to take payment out of the consigned money, which he may (if he chooses) leave to meet other claims against the defr.

"On the merits of the pursuer's appeal (which was only intended for bringing under review the S.-S.'s interlocutor of 11th May reponing the defr.) the Sheriff has great doubt.

"The pursuer's procurator contended that reponing petitions are rendered obsolete by the Sheriff Court Act of 1853, and that the provisions regarding them in the former Statutes and A. S. must be held as repealed, in order to give effect to the provisions of the Act of 1853; and they are thus within the repealing clause sec. 51 of the later Act. That such a petition is no longer admissible is shown (it was said) by the Sheriff Court Act of 1838, sec. 9, and A. S. 1839, sec. 24, requiring every such petition to be accompanied by defences prepared in terms of the Act of Sederunt; and by its being only where such defences are lodged that there can be reponing under that Statute. But defences in the terms so referred to are no longer competent; seeing that they were no answer to the statements in the summons, and the Sheriff had no discretion as to their forming part of the record; whereas, under the present rules as to records, defences are not allowed except where the Sheriff specially orders them; and they are not an answer to statements in the summons, but to those in the condescendence. Accordingly (it was said) as defences under the old form are no longer competent, the condition under which the party might be reponed on petition cannot be observed; and there can therefore be no reponing in that way.

'It was also contended that the decree on failure to state a defence is not a decree in absence, but in foro, being a decree by default after litis-contestation had begun in consequence of the defr. having entered appearance in the action

by notice of appearance, The defr.'s remedy against such a decree is therefore by appeal, and it is the settled practice of this Court to allow that remedy.

"For the defr. it was contended that the Act of 1838 and relative A. S. are only repealed so far as there is something clearly inconsistent with them in the Act of 1853, and that it is not inconsistent with the latter Act to allow the remedy of a reponing petition in cases where a reponing note is inadmissible, as it undoubtedly is in the present case.

"It was also contended that there must be some remedy against such a judgment practically in absence, even if not so in point of strict form, and that as the remedy by reponing note is incompetent, that by reponing petition must be competent.

"If the question were to be decided in this Court for the first time, the Sheriff would be inclined to hold that the impossibility of complying with the condition in the Act of 1838 and A. S. of 1839, as to lodging defences with the reponing petition, renders that form no longer admissible. But he hesitates to give effect to that view against the opinion of Lord Barcaple, Lord Ordinary, in Wilson v. State Insurance Company (1863, 35 Scot. Jurist, 635), which was followed after full consideration by the late Sheriff Glassford Bell in Halmdorff v. Greenfield, 6th December 1867, and Baylis v. Mitchell, 9th January 1867,— in both of which cases reponing petitions were sustained, and in other six or eight cases in this Court since then, in which these decisions were regarded as settling the practice. The Sheriff thinks it better not to disturb the practice on which the defr. in the present case relied (not unnaturally) when resolving to bring the decree in question under review by reponing petition instead of by appeal; which the pursuer considers he might have done, but which is now incompetent from the lapse of the time for appeal.

"W G. D."

THE

JOURNAL OF JURISPRUDENCE.

DIGEST OF REGISTRATION CASES FROM 1869 to 1873. (FOR A DIGEST OF REGISTRATION CASES FROM 1863 to 1868, see ante, vol. xiii. p. 511.)

PROPRIETORS.

Superiority-Feu-duties.-A right to superiorities or feu-duties does not afford a qualification under the Reform Act of 1868, sec. 5,-a superior not being a "proprietor," nor feu-duties, "lands and heritages," in the sense of that section.

Observed by Lord Ormidale that the circumstance that feu-duties are not entered on the Valuation Roll, while the 5th section requires the value to be taken "as appearing from the Valuation Roll," was conclusive against the claim. (COUNTY) Baird v. Ballantyne, 1869, 8 Macph. 18.

Superiorities-Feu-duties.-A bare superiority without return of feu-duties does not entitle to claim as proprietor of lands. Casualties do not afford, or contribute to afford, a qualification even under the Act of 1832, and cannot be taken into account along with the feu-duties so as to make up the statutory value. (COUNTY) see Mathieson, 10 Macph. 7.

Feu-duties-Sale of part of subjects to vassal unentered with Superior. A superior was proprietor of feu-duties of the value of £10, 10s., which affords a qualification under the Reform Act of 1832. The vassal sold part of the subjects from which the feuduty was exigible to a railway company, and bound himself to free the company from all feu-duties, etc. By the Lands Clauses Consolidation (Scotland) Act, a railway company, on purchasing land, is not bound to enter with the superior, nor to pay feu-duties cr casualties, but is bound to make compensation to the superior for the deprivation of his casualties, or other loss sustained by the procedure under the Act. There was no apportionment of the feuduty, but if there had been, the proportion effeiring to the lands unsold would have been insufficient to afford a qualification. Held (diss. Lord Ormidale), that as the portion of land unsold still remained.

VOL. XVIII. NO. CCXIII.—SEPTEMBER 1874.

2 K