Sheriff Courts (Scotland) Extracts Act 1892

1892 CHAPTER 17

An Act to simplify the Forms of Extracts of Decrees in the Sheriff Courts of Scotland.

[20th June 1892]

Whereas it is expedient to shorten and simplify the forms of extracts of decrees in the Sheriff Courts of Scotland :

Be it therefore 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 :

1 Short title and commencement.

This Act may be cited as the Sheriff Courts (Scotland) Extracts Act, 1892, and shall come into operation on the first day of October one thousand eight hundred and ninety-two.

2 Saving clause.

This Act shall not apply to proceedings in the sheriffs small debt court, or debts recovery court, or to summary ejections under the Act first and second Victoria, chapter one hundred and nineteen, sections eight to thirteen, or to commissary or executory proceedings, or proceedings for service of heirs or completing titles, or to proceedings under the Summary Jurisdiction (Scotland) Acts, 1864 and 1881.

3 Interpretation.

In this Act the following terms shall include the several meanings after mentioned:

• " Decree " shall include any judgment, deliverance, interlocutor, act, order, finding, or authority which may be extracted.

• " Sheriff-clerk " shall include sheriff-clerk-depute.

4 Extracts may be in the abbreviated forms of schedule.

Extracts of decrees in the Sheriff Courts of Scotland in civil actions or proceedings may be in the abbreviated forms in the schedule hereto annexed, or as near thereto as the circumstances permit, and the said schedule with the directions therein contained shall be held to form part of this Act; and extracts in such abbreviated forms shall be as valid and sufficient as if in the forms now in use. It shall not be necessary for extracts that the decree shall contain the word "decerns."

5 Forms not specially provided for may be modelled on schedule.

In any case not particularly provided for in said schedule, the extract may be modelled on the forms of the schedule, with such variations as the nature of the case or form of the action or proceeding may necessarily require, or the existing form may be used.

6 Full extracts may be obtained.

Notwithstanding the provisions of this Act, any party interested may demand from the sheriff-clerk a full or more extended extract of a decree when the same shall have become extractable.

7 Import of the warrant for execution.

The following provisions shall apply to the short warrant for execution added to said extracts :

(1) If the decree extracted is for the payment of money, or, amongst other things, for the payment of money, it shall be lawful, in virtue of said warrant, to charge the debtor to pay the sum or sums of money, principal, interest, and expenses specified in the extract, to the creditor within the appropriate days of charge, under the pain of poinding (and also under the pain of imprisonment where the debt is of such a nature as the payment thereof may be enforced by imprisonment), the terms of payment being first come and bygone; as also to arrest the goods, debts, and sums of money of the debtor in payment or satisfaction of the sum or sums contained in the extract; and if the debtor fail to obey the charge, then to poind and distrain his goods and effects in payment or satisfaction of the sum or sums contained in the extract; and if necessary for effecting said poinding, to open shut and lockfast places.

(2) If the decree extracted is for the performance of an act or implement of an obligation other than the payment of money, it shall be lawful, in virtue of said warrant, to charge the person against whom the decree is granted to perform the act or implement the obligation within the appropriate days of charge, under the pain of imprisonment.

(3) If the decree extracted is for the payment of money, and also for the performance of an act or implement of an obligation, it shall be lawful, in virtue of said warrant, to do what is provided for in the two immediately preceding sub-sections.

(4) If the decree extracted is one of removing, it shall be lawful, in virtue of said warrant, to charge the defender to flit and remove himself, his sub-tenants, dependents, and effects from the subjects or premises mentioned in the extract, at the term or date therein specified, if the charge be given forty-eight hours prior thereto, or within forty-eight hours after the charge if given later, under the pain of ejection; and, if he fail to obey the charge, then to eject and remove the defender, his sub-tenants, dependents, and effects from the subjects or premises, and keep them furth thereof, and enter the pursuer or others in his name therein (an inventory of the effects ejected being made by the person executing the diligence) and, if needful for these purposes, to make gates, doors, and other lockfast places open and patent.

(5) If the decree extracted is for a removing, and also for payment of money, or for the performance of an act or implement of an obligation, it shall be lawful, in virtue of said warrant, to do what is provided for in sub-sections (4), (1), or (2) of this section.

(6) In any case where the party to be charged is furth of Scotland, it shall be lawful, in virtue of said warrant, to give an edictal charge of fourteen days.

8 Executors.

Execution on said extracts shall be carried out by messengers-at-arms, officers of court, or others entitled to execute diligence thereon.

9 Interest to be deemed at five per cent.

Where interest is included in a decree or extract, it shall be deemed to be at the rate of five per centum per annum, unless otherwise stated.

10 Act to apply to decrees pronounced prior thereto.

The provisions of this Act shall apply to all extracts issued after its commencement, although the decrees extracted may have been pronounced prior thereto.

11 Extracts not to be invalid on account of form.

No extract shall be held invalid on account of form if it be sound in substance.

12 Repeal.

All statutes and acts of sederunt, so far as they may be inconsistent with any of the provisions of this Act, are hereby repealed.

13 Acts of sederunt may be passed.

It shall be lawful for the Court of Session to pass from time to time any act or acts of sederunt which may be found necessary for giving more full effect to the purposes of this Act.

SCHEDULE

1.—EXTRACT DECREE FOR PAYMENT.

At Glasgow, the tenth day of June (and fourteenth day of July) 1889, in an action in the sheriff court of the county of Lanark, at Glasgow, at the instance of John Smith, merchant, Gallowgate, Glasgow, pursuer, against John Brown, 19, Newton Street, Glasgow, defender, the sheriff (in absence) decerned the defender to pay to the pursuer one hundred pounds, with interest thereon from 1st January 1889, and five pounds ten shillings of expenses, (a) And the sheriff grants warrant for all lawful execution hereon by instant arrestment, and also by poinding after a charge of [If an edictal charge is necessary, insert seven free days if the defender is within Scotland, and fourteen free days if furth thereof] seven free days. Extracted at Glasgow, this fifteenth day of August 1892, by me, sheriff-clerk of Lanarkshire.

GEO. SELLAR,

Sheriff-Clerk.

NOTES.—

• Where two or more counties are united in one sheriffdom, the court may be described thus:—" The Sheriff Court of the Sheriffdom of Stirling, Dumbarton, and Clackmannan, at Stirling."

• Where decree for expenses is given in favour of an agent, it may be expressed thus in the extract:—" And to pay to A.B., writer, Glasgow, the pursuer's agent, five pounds ten shillings of expenses."

• Where there are more actions than one in the same court between the same persons the action may be identified in the extract by giving the date of the first deliverance therein.

2.—EXTRACT DECREE OF AFFILIATION AND ALIMENT.

3.—EXTRACT DECREE FOR PAYMENT OF ALIMENT.

4.—EXTRACT DECREE COGNITIONIS CAUSA.

5.—EXTRACT DECREE OF MAILLS AND DUTIES.

6.—EXTRACT DECREE OF POINDING THE GROUND.

7: EXTRACT DECREE OF MULTIPLEPOINDING.

8.—EXTRACT DECREE OF FORTHCOMING.

9.—EXTRACT WARRANT OF SUMMARY EJECTION.

(Preamble as in No. 1.) Granted warrant summarily to eject the defender, his sub-tenants, dependents, and effects from (here describe shortly the subjects). Extracted, &c. (as in No. 1).

10.—EXTRACT DECREE OF REMOVAL.

11.—EXTRACT DECREE OF REMOVAL FOR NONPAYMENT OF FEUDUTY OR RENT UNDER A LONG LEASE, UNDER SECTION 32 OF 16 & 17 VICT. C. 80.

12.—EXTRACT DECREE FOR PERFORMANCE.

13.—EXTRACT DECREE OF INTERDICT.

14.—EXTRACT DECREE OF ABSOLVITOR.

15.—EXTRACT DECREE OF DISMISSAL.

(Follow the immediately preceding form down to (a).) The sheriff dismissed said action. (If expenses are decerned for, follow the immediately preceding example.) (Continue from (a) in No. 1.)

16.—EXTRACT APPOINTMENT OF A JUDICIAL FACTOR.

17.—EXTRACT DISCHARGE OF A JUDICIAL FACTOR.

18.—EXTRACT ACT OF CURATORY, AND UPON PRODUCTION OF INVENTORIES.

19.—EXTRACT ACT UPON PRODUCTION OF INVENTORIES BY CURATORS NOMINATE WITHOUT CONSENT OF NEAREST IN KIN.

20.—EXTRACT ACT UPON PRODUCTION OF INVENTORIES BY CURATORS NOMINATE WITH CONSENT OF NEAREST IN KIN.

(May be modelled upon No. 19 with the necessary variations.)

21.—EXTRACT DECREE OF DECLARATOR.

(Preamble as in No. 1.) The sheriff found and declared (give substance of declarator). Extracted, &c. (as in No. 1).

22.—EXTRACT DISCHARGE TO 'A BANKRUPT.

23.—EXTRACT DISCHARGE OF A TRUSTEE ON A SEQUESTRATED ESTATE.

24.—EXTRACT DECREE OF CESSIO.

25.—EXTRACT DISCHARGE TO A DEBTOR UNDER PROCESS OF CESSIO.

26.—EXTRACT WARRANT OF SALE. (Preamble as in No. 1.)

The sheriff granted warrant to (state import of warrant). Extracted &c. (as in No. 1).

27.—EXTRACT DELIVERANCE UNDER THE PRESUMPTION OF LIFE LIMITATION (SCOTLAND) ACTS.

28.—EXTRACT DELIVERANCES UNDER THE MARRIED WOMEN'S PROPERTY (SCOTLAND) ACT, 1881. (Extracts under the above or similar statutes may be modelled on No. 27.)

GENERAL DIRECTIONS.

Where the sheriff has adhered to the decree of the sheriff-substitute the date of the sheriff's decree only need be given.

In the extract the decree shall bear to have been given from the seat of the court.

Whether the decree has been given by the sheriff or sheriff-substitute, the phrase to be used in the extract shall be " the sheriff. "

Where an extract has more than one date, it shall not be necessary to specify what was done on each date.

It shall not be necessary to state by whom the extract has been written or collated.

It shall be sufficient that the import or substance of the decree is given in the appropriate form herein-before provided, although the cravings or conclusions of the action, or the decree itself, may be expressed in different or more redundant language.

The dues of extract shall be added to the expenses decerned for, and the total inserted in the extract.

The nature of the debt (such as that it is for aliment) shall be stated in the extract in all cases where payment of the debt can be enforced by imprisonment.

In any case where imprisonment is competent, a fiat or warrant of imprisonment must first be obtained in terms of the statutes.