Sheriff Courts (Scotland) Act 1876
| Jurisdiction | UK Non-devolved |
Sheriff Courts (Scotland) Act, 1876
(39 & 40 Vict.) CHAPTER 70.
An Act to alter and amend the Law relating to the Administration of Justice in Civil Causes in the ordinary Sheriff Courts in Scotland, and for other purposes relating thereto.
[15th August 1876]
B E it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
Preliminary.
1 Short title.
1. This Act may be cited for all purposes as ‘TheSheriff Courts (Scotland) Act, 1876.’
2 Commencement and application of Act.
2. This Act shall commence and come into operation on the first day of October one thousand eight hundred and seventy-six, which date is herein-after referred to as the commencement of this Act. Unless where otherwise expressly provided, this Act shall only apply to civil proceedings in the ordinary sheriff court.
3 Interpretation of terms.
3. In this Act, unless when there is something in the sense or context repugnant to that construction, the following terms have the meanings herein-after assigned to them; that is to say,
‘Action’ includes every civil proceeding competent in the ordinary sheriff court:
‘Person’ includes company, corporation, and firm:
‘Sheriff’ includes sheriff substitute:
‘Sheriff clerk’ includes sheriff clerk depute, and in Part VIII. of this Act means commissary clerk, in those cases in which such office is not abolished:
‘Agent’ means a law agent enrolled in terms of the Act of the thirty-sixth and thirty-seventh years of the reign of Her present Majesty, chapter sixty-three:
‘Final judgment’ means a judgment or interlocutor which, either by itself or taken along with a previous interlocutor or interlocutors, disposes of the whole subject-matter of the cause, or of the competition between the parties in a process of competition, although judgment shah not have been pronounced on all the questions of law or fact raised therein, and although expenses, if found due, have not been taxed, modified, or decerned for.
I.—
4 Of the sessions.
4. Each sheriff shall hold two sessions in each year, the one of which shall be called the winter session, and the other the summer session.
The winter session shall in each year commence on the first day of October or the first ordinary court day thereafter, and shall end on the last ordinary court day in March; but it shall be lawful for the sheriff to adjourn the court at Christmas time for a period not exceeding fifteen days.
The summer session shall commence on the first day of May or the first ordinary court day thereafter, and shall end on the last ordinary court day in July.
5 Court days in vacation.
5. The sheriff shall before the termination of each winter session appoint at least one court day during the spring vacation for the despatch of civil business; and shall before the termination of each summer session appoint at least two court days during the autumn vacation for the same purpose.
II.—
6 Form of petitions and defences.
6. Every action in the ordinary sheriff court shall be commenced by a petition in one of the forms as nearly as may be, contained in Schedule (A.) annexed to this Act, in which the pursuer shall set forth the court in which the action is brought, his own name and designation, and the name and designation of the defender, and the prayer of the petition, without any statement whatever of the grounds of action. There shall be annexed to the petition a statement (in the form of an articulate condescendence) of the facts which form the grounds of action, and a note of the pursuer's pleas in law, which condescendence and note of pleas shall be held to constitute part of the petition.
The statement of facts shall be made succinctly and without quotation from documents except where indispensable.
The warrant following upon such petition shall be as nearly as may be in the form contained in the said Schedule (A.), which schedule and the notes thereto and directions therein shall be construed and have effect as part of this Act.
7 Petitions, &c. may be written or printed.
7. Any petition, warrant, interlocutor, order, or pleading may be written or printed, or partly written and partly printed.
8 Induci of petitions and periods of charge.
8. All petitions may, except as herein-after provided, proceed on seven days warning or induci where the defender is within Scotland, unless in Orkney and Shetland, or in any other island within Scotland, and fourteen days where he is in Orkney or Shetland, or such other island, or is not within Scotland; and in all kinds of execution proceeding upon extracted decrees a seven days charge shall, except as herein-after provided, be competent and sufficient:
Provided that,—
(1) (1.) In any case in which a shorter warning or induci or period of charge is by law in force at the commencement of this Act sufficient, such shorter warning or induci or period of charge shall continue to be sufficient after the commencement of this Act:
(2) (2.) It shall be lawful for the sheriff to shorten the warning or induci as he shall see fit in any case which he considers to require special despatch.
9 Sheriff's warrants, &c. may be executed edictally.
9. It shall be competent to execute edictally any warrant of citation granted or charge on an extracted decree pronounced by a sheriff against any person furth of Scotland, by delivery of a copy thereof at the office of the keeper of edictal citations at Edinburgh according to the mode established in regard to the execution edictally of citations and charges on warrants of the Court of Session; or by sending to such keeper in a registered post-letter a certified copy of such warrant or charge, of which copy the keeper shall acknowledge the receipt. Every citation or charge so executed edictally shall be recorded in the record of edictal citations in edinburgh in a separate record of edictal citations or charges against persons furth of Scotland cited or charged upon warrants proceeding from any sheriff court therein.
Where the party cited or charged has a known residence or place of business in England or Ireland, a copy of the petition and citation, or of the decree and charge, on fourteen days induci, shall be posted in a registered letter to the party at such address by the officer, whose execution shall bear that he has done so. The sheriff clerk shall in all warrants to cite or charge persons furth of Scotland insert a warrant to cite or charge edictally.
10 Original petitions to remain in the hands of the clerk; certified copies may be borrowed.
10. Every petition commencing an action shall, after it has been lodged for calling, remain in the hands of the clerk of court, unless the sheriff shall give a special order in writing to the contrary.
In every defended action the pursuer shall forthwith, on the defence being lodged, lodge in process a copy of the petition, and of the warrant thereon, certified as correct by him or his agent in the cause, and which may thereafter be borrowed by any party to the process, and where a warrant has been granted to arrest on the dependence of the action, such certified copy shall be a sufficient warrant for such arrestment. Separate precepts of arrestment may be issued as heretofore.
11 As to proving lost petitions.
11. Where a petition or any other pleading is lost or destroyed a copy thereof proved in the action to the satisfaction of the sheriff before whom the action is depending at the time, and authenticated in such manner as he shall require, may be substituted, and shall be held equivalent to the original for the purposes of the action.
12 Of the service of writs.
12. With regard to the service of writs issuing from the sheriff courts, the following provisions shall have effect; that is to say,
(1) (1.) A warrant of citation issuing from any sheriff court against any defender who under the provisions of this Act is subject to the jurisdiction of such sheriff court, but who has his domicile within the jurisdiction of another sheriff court may be competently executed against such defender within and by an officer of the sheriff court of the county in which such defender is domiciled without any indorsation thereof by the sheriff clerk of such last-mentioned county:
(2) (2.) A party who appears shall not be permitted to state any objection to the regularity of the execution or service as against himself of the petition by which he is convened:
(3) (3.) The sheriff may authorise the pursuer to serve of new his petition on any defender who has not entered appearance should it appear to the sheriff that there was any irregularity in the service on such defender, and the petition, on being so served of...
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