in which case the Sheriff may grant him a diligence for recovering them. (See note to section 20, supra. The provision in the latter part of the above clause, as to the production of documents, is still operative.) 24. If the defender be absent at the calling of the cause, the Sheriff may either hold him as confessed, and decern, or allow such competent proof in support of the libel as the pursuer or his procurator shall require, or the Sheriff may deem necessary; but before proceeding in the proof, it must be shewn to the Sheriff or commissioner taking the proof that regular notice of the appointment for proof has been given to the defender. (See section 115, infra.) And the defender shall not be reponed against the decree in absence, or interlocutor allowing the proof, unless he shall apply to have the decree or interlocutor recalled, as hereinafter directed, by a petition accompanied with defences prepared in terms of chap. vii., sections 32 and 33, and shall consign in the hands of the Clerk of Court the expenses incurred, as modified on taxation (1 and 2 Vict. c. 119, § 18), and the Sheriff shall have power to award to the pursuer such part of the expenses consigned as he may judge reasonable. (Decree in absence and provision for reponing are now regulated by the Sheriff Court Act, 1853, section 3.) CHAP. VI.-PROTESTATION BY THE DEFENDER FOR NOT INSISTING. (The provisions of this chapter appear to be still operative.) 25. Upon the day of compearance or any subsequent court-day during the currency of the summons, if the defender produce the copy thereof given to him, and if the pursuer fail to appear and insist, the defender may crave protestation for not insisting, which the Sheriff shall admit, and modify the protestation money according to circumstances, so as to indemnify the defender for his trouble and expenses, besides the dues of extract. 26. No protestation shall be extracted till the expiry of seven free days after the day on which the same was granted, excepting in cases where arrestments have been used, when the protestation may be extracted and given out on the lapse of forty-eight hours. The protestation, when extracted, may contain a precept of poinding and arrestment for recovery of the protestation money, and the dues of extract. 27. If protestation be not extracted, the pursuer shall be allowed to call and insist in his action without a new citation, upon paying over to the defender or his procurator, or, in his absence, after due intimation or refusal to accept, consigning in the clerk's hands, for the defender's use, the sum awarded in name of protestation money, except the expense of extract. 28. In case the protestation be extracted, the instance shall fall, and the defender shall not be obliged to answer, except upon a new summons, and citation on the ordinary induciæ. CHAP. VII.-PROCEDURE WHEN APPEARANCE IS MADE FOR (The sections of this chapter which appear to have been superseded by the Sheriff Court Act, 1853, as inconsistent with the provisions thereof, are 29,35, 36, 37, 38, 39, 42, 43, 44, 46, 47, 48, 49, 50, 52, 53, 54, 57, and 60.) 29. The defender or his procurator, if prepared, may give in his defences to the libel at the calling of the cause; but if he crave to see the libel, in order to state his defences, the defences shall be lodged on or before the seventh day thereafter, and if such seventh day be a court-day, before the hour of meeting of the Court, with power to the Sheriff to appoint an earlier or a later day when from the nature of the case he may see cause to do so. (See Sheriff Court Act, 1853, sec. 3.) 30. A procurator appearing for a defender must produce along with his defences either a written mandate for the defender or the copy of citation given to the defender. 31. When there are more defenders than one appearing by different procurators, the procurator for the pursuer shall make out a copy or copies of the summons, or an excerpt or excerpts thereof, applicable to the case of each defender or set of defenders appearing by one procurator, which shall be signed and certified by the Clerk of Court, and given out for stating defences, and the clerk shall retain the original summons; and in all the future procedure the process shall be given out to the procurators for the defenders respectively, according to their order in the summons, who shall each be allowed to see the same for such time as the Sheriff shall think proper. 32. Upon the day appointed the defender shall give in all his defences, both dilatory and peremptory. He shall in the first part of his defences meet in their order the statements of fact in the summons, by admitting or denying the same, either absolutely or with qualifications, but without argument, and with such explanations in point of fact applicable to each averment as are necessary to make his answers intelligible; and shall also set forth articulately without argument the facts on which he may found a separate substantive plea in law; and in the second part of his defences he shall subjoin under distinct heads a summary of all the defences or pleas in law which he is to maintain, with such argument as he may think fit. 33. Along with his defences the defender must produce the deeds or writings on which he founds, so far as the same are in his custody or within his power; and if they are not within his custody or power, he shall state where he believes them to be, and crave a diligence for recovering them. 34. In actions of removing and in summary applications for ejection, the defender shall come prepared with a cautioner for violent profits at giving in his defences or answers, unless he instantly verify a defence excluding the action. (In a suspension of a threatened charge on an extract-decree of removing, circumstances under which juratory caution was considered sufficient. Logan v. Weir, July 16, 1870, 42 Jurist 616.) 35. The defences, when given in, shall be seen, and replies lodged on or before the seventh day thereafter; and if such seventh day be a court-day, before the sitting of the Court, with power to the Sheriff to appoint a later or an earlier day, if he see cause. If, however, the parties are ready to close the record upon the summons and defences alone, or on these papers, along with a minute by the pursuer written on the summons, and simply admitting or denying the statements in the defences, it shall not be necessary to lodge replies, and it shall be competent for the Sheriff to close the record accordingly in manner hereinafter directed. (See Sheriff Court Act, 1853, secs. 3 and 4.) 36. In the first part of the replies the pursuer shall commence by setting forth articulately and in substantive propositions, without argument, the whole facts on which he founds, which facts must be comprehended under the general statement in the summons; and he shall then meet in their order, articulately and without argument, the statements of fact in the defences, by admitting or denying the same, either absolutely or with qualifications, and with such explanations in point of fact applicable to each averment as are necessary to make his answers intelligible; and in the second part of the replies he shall subjoin under distinct heads a summary of the pleas in law which he is to maintain, with such argument as he may think fit. 37. When the replies are given in, the Sheriff shall proceed to advise the pleadings; and it shall be in his power, if he see cause, to allow the defences to be amended, in which case he shall particularly specify in his interlocutor or note the points on which amendments are required, and such amendments, whether consisting of answers to the pursuer's statements or to his pleas in law, shall be strictly confined to the points so specified, and shall be made on or subjoined to the original defences with reference to their proper heads, and in the same form and manner in all respects as is hereinbefore prescribed for preparing defences. 38. If dilatory defences have been stated, they shall be immediately disposed of by the Sheriff, unless he thinks that either from their being connected with the merits or on any other ground they should be reserved till a future stage of the cause. 39. No reclaiming petition against any judgment repelling the dilatory defences shall be allowed; but if the judgment has been pronounced by the Sheriff-Substitute, the defender may appeal to the Sheriff. (See Sheriff Court Act, 1853, sec. 19.) 40. If the Sheriff sustain the dilatory defences, or any of them, he shall at the same time determine the matter of expenses; but if he repel the dilatory defences, the cause shall then proceed in its. due course of preparation. 41. If it shall appear to the Sheriff after the dilatory defences (if any have been proponed) are disposed of, that the grounds of action on the merits, as set forth in the summons, are in terms not sufficiently positive and clear, or that the conclusions are not regularly or clearly deduced, he may either dismiss the action, decerning for expenses if he shall see cause, and reserving to the pursuer the right to bring a new action if otherwise competent, or he may allow an amendment of the libel, and give interim decree against the pursuer for the expenses incurred by the incorrect form of the summons; and the amendments, as approved, shall be written on the original summons and authenticated by the subscription of the clerk. 42. If the defences or replies be not prepared in the manner herein before directed, the Sheriff may order the same to be withdrawn, and correct defences or replies, as the case may be, to be given in; and he may give interim decree against the party in fault for the expenses thus occasioned. 43. If it shall appear to the Sheriff that the summons, defences, and replies, set forth fully the facts respectively founded on, and sufficiently bring out the merits of the cause, he shall require the parties, within a time to be specified, to state whether they are willing to hold their said pleadings as containing their full and final statement of facts; and if they agree so to do, they shall, within the said time, set forth their assent to that effect in a note subjoined to their respective pleadings, or written on the interlocutor sheet or minutes of process, and subscribed by them or their respective procurators; and the Sheriff shall then close the record by writing the words, "record closed," and dating and subscribing the same. (See Sheriff Court Act, 1853, sec. 4.) 44. If the parties do not, within the time specified, state whether they are willing to hold their said pleadings as containing their full and final statement of facts, the Sheriff shall be entitled to close the record in the same manner and to the same effect as if the parties had expressly agreed. 45. If either of the parties shall state that he does not agree to hold the summons, defences, and replies, as sufficiently setting forth the facts respectively founded on, or if it shall appear to the Sheriff that the record cannot properly be closed without alterations on or additions to those pleadings, he shall ordain the parties or their procurators to attend him on such day as he shall appoint for the purpose of adjusting the record, intimating at the same time by a note, or in such manner as he may think proper, the points to which he wishes their attention to be directed. At this meeting, or at any adjournment thereof which the Sheriff may think reasonable, the parties or their procurators may propose any alterations on or additions to the defences or replies, which alterations or additions shall be written by them on the original defences or replies in such mode or form as the Sheriff shall allow. And if the Sheriff shall then be of opinion that the record may be closed, and the parties or their procurators are willing to close it, they shall set forth their assent to that effect in a note subjoined to their respective pleadings, or written on the interlocutor sheet or minutes of process, and subscribed by them or their respective procurators; and the Sheriff shall then close the record by writing the words, "record closed," and dating and subscribing the same. (See Sheriff Court Act, 1853, sec. 4.) All alterations or additions made on the margin of the record at any period before it is closed shall be authenticated by the initials of the Sheriff. 46. If the parties fail to attend the meeting so appointed, or if any party be absent, and the party present shall consent to close the record, it shall be competent for the Sheriff to do so, in the same manner and to the same effect as if both parties had expressly agreed; or otherwise to appoint a new meeting for adjusting and closing the record, with certification. 47. If at the meeting it shall appear to the Sheriff that from the intricacy of the case, or any other cause, the record cannot properly be closed, or if both parties shall decline to close, the |