want of jurisdiction. But that distinction cannot be recognised; for the statute did not contemplate anything less broad than cases where the Sheriff had not jurisdiction;" and further, "that the effect and policy of this Act was to shut the door of this Court against the review of everything bearing the form of a small debt decree, for which it opened the door of the Court of Justiciary." This case was subsequently appealed to the House of Lords by Mackay. Graham did not put in an appearance, but their Lordships, notwithstanding a lengthened argument from the appellant's counsel, affirmed the decision of the Court below. Graham v. Mackay, February 22, 1845, 7 D. 515, 17 Jurist 240; and House of Lords, March 13, 1848, 20 Jurist 340, 6 Bell 214. Patullo brought a small debt action against Lowden's trustees, for part of the expenses incurred by him in a case then sub judice of the Supreme Court, and obtained decree. Lowden's trustees brought an action of reduction in the Court of Session, on the ground, inter alia, that the decree was incompetent, in respect that it was pronounced in a matter still in dependence before that Court. The action was dismissed, and it was held that under sections 30 and 31 the Circuit Court of Justiciary and High Court are the only competent courts of review of cases decided under the authority of the Small Debt Act. Lowden v. Patullo, December 17, 1846, 9 D. 281, 19 Jurist 102. The same principle was given effect to in Miller v. Henderson, February 7, 1850, 22 Jurist 240, 12 D. 656, which was an action of reduction of an alleged informal small debt decree and diligence following thereon. A summons at the instance of M'Ewan was dated 25th March, and the day of compearance mentioned in the copy served on Crombie, the defender, was the 13th of March. When the case was before the Supreme Court, as after mentioned, it was explained by M'Ewan that this was a clerical error, as in the principal summons the date of compearance was the 13th of May, and the marking on the back of the copy served on Crombie bore that the day of compearance was the 13th of May. The Sheriff gave decree in absence. A charge for payment followed, and in thirteen days thereafter Crombie's effects were poinded, in terms of the 20th section of this Act. Crombie then brought an action of damages before the Supreme Court against M'Ewan, in respect that the citation was bad, and the decree therefore void; and that the poinding was informal, because the schedule left for Crombie stated merely the goods poinded and their value, but did not state for what debt or at whose instance they were poinded. (See note to section 20.) The action was dismissed in respect (1st) that by the 30th and 31st sections of this Act review by the Court of Session of a small debt decree is expressly excluded, and is conferred on the Circuit Court or High Court of Justiciary, and (2d) because the schedule of goods poinded gave all the information which the Act required. It was observed by the Lord Ordinary that the objections to the decree cannot be entertained so long as it stands unaltered and unreduced. Some warrants, such as those of sequestration and the like, may be challenged without reduction, because they are generally granted ex parte, and periculo petentis. But a decree of Court, ex facie regular, must be held a good warrant for competent diligence so long as it is not set aside. Court of Session, Crombie v. M'Ewan, January 17, 1861, 23 D. 333, 33 Jurist 167. See reference to this case under sections 15 and 20. Reduction of irregular proceedings post causam, competent in the Court of Session.-An action of reduction was brought before the Supreme Court of an extract decree in the Small Debt Court of Ayrshire on the allegations of vitiation. It was alleged that the Sheriff had pronounced decree for £1, 14s. 7d. without expenses, and that the decree had been so entered in the book of causes, which was duly signed by the Sheriff, and that an extract had been issued by the Sheriff-Clerk for that amount, but that subsequently the sum, as it originally stood, had been erased in the book of causes, and had been deleted in the extract, and that in each case the sum of £2, 6s. 2d. had been substituted. The Lord Ordinary (Jerviswoode) dismissed the action as incompetent, and in his note he stated that it appeared to him, looking to the terms of the 30th and 31st sections of the Act, and to the decisions of the Court in previous cases, that the remedy did not lie in that Court. The pursuer reclaimed. It was held that if the allegations made were correct this was not a true decree of the Sheriff which was sought to be reduced, and therefore that reduction was not excluded by this section; and the competency of the action was consequently sustained. Observed :-The question to consider is, whether the Court is precluded from entertaining the present case by the 30th and 31st sections of the Small Debt Act. It appears that both these sections apply only to a process of review. The word "incompetency," in the 31st section, must be held to apply to any incompetent act in the proceedings in causa, and before judgment. But this vitiation was not a judicial act nor a proceeding in causa. It was after decree, and post causam. The reduction of it as so vitiated is not a proceeding of the nature of review of the judgment, and is not excluded. Murchie v. Fairbairn, May 22, 1863, 1 Macph. 800, 35 Jurist 493. Review by Sheriff in case of Imprisonment.—The 26th section of The Sheriff Court Act, 1853, makes the following provision for review of cases under this Act: "Provided always, that in any case in which a decree pronounced by the Sheriff in the Small Debt Court for any sum exceeding Eight pounds six shillings and eightpence, shall have been put to execution by imprisonment, the party so imprisoned shall be entitled to bring such decree under review of the Sheriff by way of suspension and liberation, and such suspension and liberation shall proceed in the form provided for summary petitions by this Act." See infra, 158. 31. And be it enacted, That it shall be competent Form of Review provided. Appeal. Appeals to any Person conceiving himself aggrieved by any Decree given by any Sheriff in any Cause or Prosecution raised under the Authority of this Act, to bring the Case by Appeal before the next Court of Justiciary, or, where there are no Circuit Courts, before the High Court of Justiciary at Edinburgh, in the Manner, and by and under the Rules, Limitations, Conditions, and Restrictions contained in the before-recited Act passed in the Twentieth Year of the Reign of His Majesty King George the Second for taking away and abolishing the Heritable Jurisdictions in Scotland, except in so far as altered by this Act: Provided always, that such Ground of Appeal shall be competent when founded on the Ground of Corruption or Malice and Oppression2 on the Part of the Sheriff, or on such Deviations in point of Form3 from the Statutory Enactments as the Court shall think took place wilfully, or have prevented substantial Justice from having been done, or on Incompetency,* including Defect of Jurisdiction of the Sheriff; provided also, that such Appeals shall be heard and determined in open Court, and that it shall be competent to the Court to correct such Deviation in point of Form, or to remit the Cause to the Sheriff with Instructions or for rehearing generally,5 and it shall not be competent to produce or found upon any Document as Evidence on the Merits of the original Cause which was not produced to the Sheriff when the Case is heard, and to which his Signature or Initials have not been then affixed, which he is only to do if required, nor to found upon nor refer to the Testimony of any Witness not examined before the Sheriff, and whose Name is not written by him when the Case is heard upon the Record Copy of the Summons, which he is to do when specially required to that Effect: Provided further, that no Sist Consigna- or Stay of the Process and Decree, and no Certificate of Appeal shall be issued by the Sheriff Clerk, except upon Consignation of the whole Sum, if any, decerned for by the Decree and Expenses, if any, and Security found for the whole Expenses which may be incurred and found due under the Appeal. how to be heard. No sist except upon tion. See the sections of the Heritable Jurisdictions Act applicable to appeals from inferior courts, with cases cited, infra. 1 It has been held that remitting a case from the Small Debt to the Ordinary Roll, under the provisions of the 14th section of the Small Debt Act, does not deprive parties of the right of appeal under the provisions of the above section. See the case of Campbell v. Gillies, under section 14, supra. Orkney and Shetland Appeals.-An appeal from the Small Debt Court at Lerwick was held to be competently brought to the Circuit Court at Inverness. Observed by the Court: The precept issued by the Lords of Justiciary in accordance with the Act of Adjournal, invited the lieges of Orkney and Shetland to bring their complaints to this Circuit. The fact that prisoners are taken from Orkney and Shetland to the High Court of Justiciary for trialprobably in consequence of the direct communication-does not prove that they might not have been tried here, for the public pro secutor may, if he deems it expedient, try every case that occurs at the High Court. (Lord Justice-Clerk, Inverness Circuit). Walker v. Moar, September 15, 1870, 43 Jurist 18, 8 Scot. Law. Rep. 41. 2 It was observed from the Bench that malice need not be personal malice on the part of the Sheriff, but what was done might be so grossly unjustifiable that the law would hold it equivalent to personal malice. An averment which resolved itself into a mere statement that the Sheriff had decided wrongly, was not necessarily a proper averment of malice. Philip v. Trustees of Forfar Building Investment Co., Sept. 16, 1868, 41 Jurist 1, 1 Couper 87. Reported more fully under section 5. A minute of agreement had been entered into for the sale of furniture by valuation, which was subsequently modified and altered by verbal agreement by all concerned, and with respect to which, afterwards, a dispute arose, and an action was brought before the Small Debt Court at Wishaw, for a disputed balance of £11 arising out of the transaction. The Sheriff-Substitute admitted parole proof as to the actings and verbal agreement subsequent to the written minute, and decided for the pursuer. Against this an appeal was taken on the ground of oppression. The appeal was dismissed, and it was held that the question, whether under the circumstances parole proof should have been admitted, was one of law, and is one peculiarly for the determination of the Sheriff. (Lords Justice-Clerk and Cowan, Glasgow Circuit). Hare v. Nicol's Trustees, May 4, 1871, 43 Jurist 389. 3 See the cases under the various sections in which appeals have been taken on the ground of alleged deviations in point of form. 4 Learmonth, Inspector of Poor of the parish of Polmont, sued Aitken for £3, 3s. 1d., being his share of certain works rendered necessary for the abatement of a nuisance caused by an open ditch in the vicinity of his property. These works were executed by the Board professedly under the Nuisance Removal Act (11 and 12 Vict. c. 123). The Sheriff gave decree. On appeal, an objection in point of form having been dismissed (see section 3, supra), it was argued, that "considering the complicated provisions of the statute upon which the question of the applicant's liability depended, the cause was manifestly unfit for trial under the Small Debt Act, and ought to have been remitted to the Ordinary Roll." Held that this plea did not amount to incompetency, but really resolved itself into an objection on the merits, which the Court were precluded from entertaining. Appeal dismissed, with five guineas expenses. (Lords Cowan and Handyside, Stirling). Aitken v. Learmonth, April 27, 1855, 2 Irv. 156. See this case also under section 3. Gemmel, the procurator-fiscal of Lanarkshire, took proceedings under the Lunacy Act, (20 and 21 Vict. c. 71), for the committal of Bittle, a dangerous lunatic. Gemmel afterwards brought an action in the Small Debt Court against the inspectors respectively for the Barony parish and the city parish of Glasgow, the former as the parish from which the lunatic was taken and sent, and the other as the parish of his settlement, calling them alternatively for payment of £12 of expenses incurred. The Sheriff gave decree against the Barony parish with expenses, and assoilzied the city parish, without expenses. Beattie, the inspector for the Barony parish, appealed to the Circuit Court, on the grounds (1st) that the summons was irrelevant, because it did not libel the Lunacy Statute on which the claim was founded; (2nd) that it did not state, as provided for in the Lunacy Act, that the parish of settlement could not be found; and (3rd) that the decision of the case without a proof was, in the sense of the Small Debt Act, a deviation from statutory form, and amounted to oppression on the part of the judge, preventing substantial justice from being done. When the appeal came to be heard at the Circuit Court, Glasgow, it was objected to as incompetent, and it was certified to the High Court of Justiciary. When the case was called before the High Court, that Court held the cause to be of a civil nature, and remitted it to the Court of Session, as prescribed by the 37th section of the Heritable Jurisdiction Act (20 Geo. II. c. 43); see infra. The appeal was then taken up by the Second Division, and after having been heard, was dismissed as incompetent, as no reason of appeal was stated founded on defect of jurisdiction. The appellant was found liable to Gemmel in expenses, and to the inspector of the city parish in the sum of five guineas of expenses. (Court of Session). Beattie v. Gemmel, February 4, 1862, 24 D. 431, 34 Jurist 213. In an appeal to the Glasgow Circuit Court, it was held that the decree was contained in the Sheriff Court Book, which had been produced, and which was the best evidence of it that could be produced. It was the only thing authenticated by the Sheriff. Objections that neither the decree appended to the original summons nor |