Sheriff shall order a condescendence (from either of the parties) and answers within such time as he may think proper.

48. If one party shall be willing to close while the other declines to do so, the Sheriff shall have power to close the record if he deems it expedient; but in the event of his allowing a condescendence in consequence of such declinature, when he would otherwise think it unnecessary, he shall find the party so declining liable in such part of the previous expenses as he may think reasonable, for which he shall grant interim decree; and he shall then order a condescendence and answers; and it shall not be competent for the clerk to receive the paper of the party who so declined to close until certified that the said expenses have been paid.

49. In the condescendence the party shall, without argument, in substantive propositions and under distinct heads or articles, set forth the whole facts and circumstances pertinent to his case which he avers and offers to prove, and shall state at the end of each article the specific mode of proof.

50. In the answers the respondent shall articulately, and without argument, admit or deny either absolutely or with qualifications each separate averment in the condescendence, setting forth in his admission or denial such explanations in point of fact as are necessary to make his answer intelligible. If the respondent, besides his answers to the averments in the condescendence, has to aver any facts or circumstances pertinent to the case on which he founds a separate substantive plea, he shall set them forth without argument in substantive propositions and under distinct heads or articles, and shall state at the end of each article the specific mode of proof.

51. The parties shall subjoin to their condescendence or answers a note of the whole pleas in law on which they respectively found. They shall also produce therewith all writings in their custody or within their power not already produced, on which they mean to found; but when books of business are founded on, excerpts therefrom may be produced in the first instance, the books themselves being produced in the course of the proof, if required. If the writings are not in their custody or power, they shall take a diligence for their recovery, or report any diligence previously granted.

52. If the answers contain a separate statement of facts, the condescender shall be entitled to subjoin to his condescendence articulate answers thereto, with any plea or pleas in law which may thence arise; but otherwise he shall not be entitled to make any alteration on his condescendence until the parties meet before the Sheriff, as hereinafter provided.

53. If the Sheriff think that any of the parties has either stated in the condescendences or answers allegations which ought to have been brought forward in the previous pleadings, or has improperly withheld writings or other documents which ought to have been previously produced, he may find the party in fault liable in the whole or such part of the expenses previously incurred by the other party as may appear proper, and give interim decree therefor.

54. As soon as the condescendence and answers, prepared in the manner before directed, are lodged, the Sheriff shall order the parties or their procurators to attend him on such day as he shall appoint, for the purpose of adjusting and closing the record, intimating, if necessary, 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 the parties or their procurators may propose any alterations on, or additions to, the condescendence and answers, which alterations or additions shall be written by them on the original condescendence and answers in such mode and form as the Sheriff shall allow; after which, or if the parties or any of them be absent, it shall be competent for the Sheriff to close the record whether the parties are willing or not, by writing the words "record closed," and dating and subscribing the same; and all alterations or additions made on the margin of the record before closing shall be authenticated as herein before directed.

55. If in the summons, defences, and replies, or in the condescendence and answers, a statement of fact within the opposite party's knowledge be averred by one party and not denied by the other, the latter shall be held as confessed.

56. When the record has been closed in any of the modes above mentioned, no new averments of fact, amendment of the libel, or new ground of defence, or productions within the power of the party, shall be allowed or received, under the exception of res noviter veniens ad notitiam, or of facts emerging since the record was closed.

57. When the Sheriff shall see cause, he may order written pleadings on the relevancy of the allegations in the record. (Repealed.)

58. It shall be competent to either party before final judgment in a cause to apply, either by motion in Court or by a short note without argument, for leave to lodge a statement of any matter of fact or document noviter veniens ad notitiam, or emerging since the record was closed. The Sheriff shall thereupon appoint the said party, within a time to be specified, to give in a condescendence stating, in the first place, the facts which he alleges to have newly

come to his knowledge or to have emerged since the record was closed; and secondly, and separatim, setting forth the circumstances under which they have only recently come to his knowledge or emerged; and shall, if he see cause, appoint the other party, within a specified time, to answer the latter part of the said condescendence. And upon the said answers being given in, the Sheriff shall, either upon proof or otherwise, determine whether or not the said matter, as res noviter veniens ad notitiam, or as having emerged since the record was closed, ought to be added to the record, and shall pronounce an interlocutor accordingly, at the same time determining or specially reserving the point of expenses. And in case he shall be of opinion that the said facts ought to be added to the record, he shall appoint the opposite party to answer the first part of the said condescendence; and the Sheriff shall thereafter of new close the record upon these additional papers.

59. The Sheriff shall, by a special order, fix the time within which each paper shall be lodged, except in so far as hereinbefore or after provided; and the clerk shall not receive them after the time so fixed, except by consent of the opposite agent, written thereon and subscribed by him. Nor shall the time for so lodging papers be in any case prorogated, except by the Sheriff on cause shown, and on payment of an amand, or of the whole or part of the expenses previously incurred, if the Sheriff shall think proper. the party shall fail to lodge any paper ordered within the time originally fixed or afterwards prorogated, the Sheriff may close the record and either give judgment, allow a proof, or otherwise dispose of the cause as he shall think fit.

If

60. When it shall appear to the Sheriff that all the facts requisite to the decision of the cause are ascertained, so as to render any proof unnecessary, he may proceed to decide the cause without further argument, or he may order memorials or minutes of debate if he see cause.

61. It shall be competent to the pursuer, before any interlocutor of absolvitor is pronounced, to enter on the record an abandonment of the cause on paying full expenses to the defender, and to bring a new action if otherwise competent.

(See Kermack v. Kermack, Nov. 27, 1874, 2 Rettie 156. Abandonment by extrajudicial communication is insufficient. Nelson v. Gordon and others, June 26, 1874, 1 Rettie 1093.)

62. In pronouncing judgment on the merits, the Sheriff shall also determine the matter of expenses, in so far as not already settled.

63. All pleadings shall be subscribed by the party himself (he being answerable as to their being in regular form and containing

nothing improper or disrespectful to the Court), or by a procurator of Court, or other person legally authorised to act; and shall state the name and designation of the person by whom they are drawn; otherwise they shall not be received.

64. No petition, memorial, minute, note, protest, or written pleading other than those which are expressly allowed by the present regulations, shall, without previous permission by the Sheriff, be received by the clerk.

65. It shall be the duty of the Sheriff to enforce in the strictest manner the present regulations by ordering peremptorily all such pleadings as are not in terms thereof to be withdrawn, and also, if necessary, by imposing amands or awarding to the opposite party expenses to such an extent as may seem expedient and proper.

CHAP. VIII.-APPOINTMENTS ON PARTIES TO CONFESS OR Deny, and JUDICIAL EXAMINATION OF PARTIES.

66. When the record shall have been closed, or at such earlier stage of the cause as to the Sheriff shall seem proper, he may order both parties, or either of them, between and a certain day, by a writing under their hands, to confess or deny facts specified by the Sheriff, or to attend personally for examination and answer such interrogatories as the Sheriff or commissioner shall think proper; and if the party fail to comply with such order within the time assigned, he shall be held as confessed to such extent as the Sheriff may think just, and decree may thereupon be pronounced, reserving to the Sheriff to repone him upon cause shown, and on payment of such amand or expenses as the Sheriff may think proper.

67. All such examinations shall take place in presence of the Sheriff; but when he cannot attend, or in cases of special emergency, he may appoint a commissioner.

CHAP. IX.-PROOF AND CIRCUMDUCTION.

68. If the facts are not sufficiently ascertained, the Sheriff shall allow a proof of such facts averred in the record as he may deem necessary; and it shall be the duty of the Sheriff or his substitute to take the proof; but when this cannot be done without interfering with more important duties which cannot be delegated, a remit may be made to a commissioner.

(By the Sheriff Court Act, 1853, section 10, a remit to a commissioner within the same county is incompetent except under the circumstances therein provided.)

69. When the Sheriff considers it necessary to grant act and commission, the clerk shall only extract so much of the process as relates to the points on which the proof is to be taken; but it shall not be necessary to take out such extract if the proof is to be taken within the county. The commissioner, if the proof is to be taken within Scotland, shall either be the clerk of court, his acting depute, a practitioner before any court of law of at least three years' standing, a justice of the peace, or other magistrate.

(See note to section 68.)

70. If the mean of proof be by writings alleged to be in the other party's hands, a day shall be assigned to that party for producing them, or to depone thereanent, as in an exhibition; or a diligence may be granted against him as a haver; and in case he shall fail to exhibit or depone on the day appointed, he shall be held as confessed upon the point offered to be proved by such writings.

(The pursuer of an action lodged copies of documents on which he founded. He called on the defender to produce the originals, which were in his hands. The Sheriff ordained him to do so, and on his failing gave decree against him. On appeal this was recalled, the copies were held equivalent to the originals, and the defender was held as confessed as regards the averments sought to be proved by the copies. Strachan v. Steuart, November 10, 1870, 9 Macph. 116, 43 Jurist 47. A decision giving effect to the same principle had been pronounced in Caledonian Railway Company v. Orr, June 7, 1855, 17 D. 12, 27 Jurist 418.)

71. When the mean of proof is by writings not in the party's hands, or by witnesses, a day shall be assigned for recovery of such writs, or for proving by witnesses, and diligence shall be granted to that effect, to be reported against the day assigned. (Vide infra, sec. 126, as to the cases where the claim exceeds £40.)

72. Witnesses and havers residing in another sheriffdom must be cited in terms and under the provisions of 1st and 2d Vict. c. 11 sec. 24.

73. The evidence of any witness about to leave Scotland, or whose testimony is in danger of being lost on account of extreme old age or dangerous sickness, may, upon application in a depending process, be taken to lie in retentis. The party, if required by the Sheriff, must instruct the fact alleged as the cause of the application. In case of old age, a certificate to that purpose must in general be exhibited; and in case of sickness, the certificate of a physician or surgeon, or of the minister of the parish, must always be produced. If such proof is applied for before the record is closed, the party shall specify in the application the fact or facts on which the witnesses are to be examined.

(A summons executed, although not called, is a depending action. M'Auley v. Cowe, 1873, supra, p. 21).