rators heard, the Sheriff-Substitute pronounced the condition as to time: Finds that there is no evidence in pro following Interlocutor: Having heard parties' procurators on the closed record, Finds that the defenders do not dispute the sum which the pursuers demand, but plead compensation to the extent of £100 in name of damages, because of the pursuers' alleged failure to furnish and fit up within the contracted period, nor until two months afterwards, the engine, boiler, and apparatus in respect of which their claim now sued for originates: Finds that there has not been stated any specification of said damages, and as the record stands, the pursuer has not had opportunity of meeting the claim: Finds that this claim of damages having been sustained arises ex contractu, and although illiquid, it may nevertheless be competently allowed to compensate, to the extent proved, the sum sued for: Finds, how ever, that that defence cannot properly be maintained ope exceptionis, but only by an independent action of constitution, which can hereafter be conjoined herewith; Therefore sists process for fourteen days, to enable the defender to institute such action. NOTE. The rule undoubtedly is, as contended for by the pursuers, that an illiquid claim of damages cannot competently be pled in compensation of an admitted or undisputed debt. Still an exception occurs to the rule when the damages alleged result from a breach of the contract out of which the creditor's demand has sprung (Taylor v. Forbes, 2d Dec., 1830, 9 Shaw, 113). Indeed, in one case it was held that damages arising out of a prior contract might be pleaded in compensation of a sum due under one of subsequent date (Hunter v. Mitchell, 20th July, 1858, 20 Sess. Cases, 1353). But where constitution is necessary, the practice is-and in the present instance it is necessary to institute a separate action to that effect. In fact, the litigation between the parties will relate solely to the counter claims, as to which a record must be made up, containing specific averments on the one hand, and corresponding answers on the other; which, as the record has been prepared, cannot be done here. cess of this alleged verbal agreement, and the defenders craved Both parties appealed, and after a hearing the Sheriff expenses, of which appoints an account to be given in, and pronounced the following judgment: Having heard parties' procurators under their mutual appeals upon the Interlocutor appealed against, and whole process, Finds that this is an action for payment of £109, being the balance of the price of a steam-engine, boiler, and machinery, furnished and fitted up by the pursuers for the defenders: Finds that it is not denied on record that the work was done, nor is it alleged that there was any defect in the workmanship or the engine itself, and the only defence stated is "compensation to the extent of £100 sterling, being the damages sustained by the defenders through the pursuers' failure to furnish and fit up the engine, boiler, and apparatus in question within two months of the date of contract, in terms thereof, or by the 1st September last, the work not being completed for two months afterwards:" Finds that there is not sufficient written evidence to instruct that the contract under which the engine was made contained any stipulation as to time, or that it was to be completed in two months: Finds that a specification was at first made by the defenders for the engine, in which it was a condition that the engine was to be furnished within two months from the acceptance of the contract; but finds it alleged by the pursuers that the written offer to finish the engine within two months was declined by the pursuers, of date 30th June, and that it was under a subsequent verbal agreement that the engine was agreed to be furnished and fitted up, under which there was no taxed by the auditor, but reserves all competent action at the defenders' instance for their alleged counter claim of damages, and to the pursuers their defences thereagainst as accords, and decerns. NOTE. This is a very important case, as all cases are which involve questions arising from alleged failure to imple ment obligations in mercantile contracts, and the distinction between such claims of compensation as are pleadable ope exceptionis, and those which require a separate action. The case was very ably pleaded on both sides before the Sheriff by Mr Cowan and Mr Naismith. The distinction which the Sheriff draws between such cases, in one word, is this, that it is only direct damage from non-implement of an admitted or proved obligation in a contract which can be relevantly stated as a set-off against a liquid and admitted demand under it, and that any ulterior claims, whether founded ou consequential damage or lucrum cessans, must form the subject of a separate action for their constitution. Act. L. CowAN. Alt. J. NAISMITH, 1ST APRIL, 1865. SHERIFF COURT, DUMBARTONSHIRE DUMBARTON. (SHERIFFS HUNTER AND STEELE.) HE GREENOCK WATER TRUSTEES and JOHN KERR GRAY (Town Clerk of Greenock) v. WILLIAM THомSON (Glen's Executor.) eriff Court Act, sec. 15-What is a "cause"?—A summons was dated 14th January, but was not served till 12th August. When called, it was objected that the 15th section of the Sheriff Court Act applied, by which 1 case in which no procedure has taken place stands lismissed.—Held, that unless a summons has been alled in Court, there is no cause, and that the 15th ection of the Act did not apply. defender was called to this action as executor of the ased Robert Glen, or as vitious intromitter with his and gear, etc., or as being personally bound for the sued for, conform to his obligation founded on; and summons concluded for payment of £26 5s per act. The summons was dated 14th January, 1864. conclusions were restricted to £8 5s, £8 having atime been paid. Appearance was entered for the ider, who gave in a minute of defence, in which he led-Preliminary-(1) That the copy summons ed on the defender, assumed to be a correct copy of riginal or principal summons, bore to be dated 14th ary, and to have been served on 12th August, 1864, these were the actual dates of the summons being I and served respectively. There had, therefore, not only three, but upwards of six consecutive hs wherein the pursuer had not taken any proceedand the defender could not have taken any, not aware that such a summons existed; and the action fore stood dismissed, as the service of the summons nept; (2) That the pursuer had no title, at least roduced no title; (3) That the summons had not laly served-neither the citation given to the de, nor the execution of citation, being in terms of heriff Court Act; (4) That the action being in for £8 5s only, ought to have been brought in nall Debt Court, and not in the Ordinary Court; hat the defender was not a vitious intromitter as i, nor executor, nor representative of the deceased Glen. Explained that the latter left a testament , and had appointed executors or trustees, and they ot been called to the action. On the Merits-(6) the preliminary statements were held as repeated, e pursuers' allegations were denied. record was closed on 6th September, 1864, and on October thereafter, parties' procurators having been the Sheriff-Substitute pronounced the following ocutor: Sheriff-Substitute having heard parties' procurators ce, and resumed consideration of the process, Finds e lapse of six months between the date of the summons e execution of it does not bring the case under the ons of the 15th section of the Sheriff Court Act, 16 & t., cap. 80, in respect that that section has reference causes which have been called, and are actually dein Court: Therefore repels the preliminary defences, ows the pursuers a proof of their averments, so far as denied, and the defenders a counter-proof, pro ut de jure; appoints a diet, etc. NOTE.-The defender denies his liability for the debts of Glen; but he does not explain how, if he be not liable, he came to make payments to account, and to write the letters Nos. 6/1 and 6/2 of process. The defender appealed. Thereafter, the Sheriff pronounced a judgment, affirming the Interlocutor and dismissing the appeal. He added the following NOTE.-The Sheriff has no doubt of the soundness of the Interlocutor of the Sheriff-Substitnte. At the debate on the appeal, there was raised the general question of what constitutes a depending action. But here that question does not emerge. The only question is, whether the case comes under the operation of the 15th section of the 16 and 17 Vict., c. 80. The Sheriff is clear that it does not. Throughout, the section is pervaded by phraseology which shows that the reading of this enactment by the Sheriff-Substitute is correct. 1st. The word " cause " is used in two clauses of the section. But this word, vi termini, imports not only that the summons has been called, but that there has been procedure under it. By no stretch of construction could it be applied to a summons which had not been called, and, still less, to one which had not been executed; 2d. It is the conduct "of the parties" with which the section deals. A certain right is reserved to either of the parties, upon condition of his paying certain expenses "to the other party." No words more clear or direct could have been used to show that there must be a contested cause in progress. When the phraseology is so precise, it is not material to inquire by interpretation into the intendment. But the intendment is to create a control over dilatory procedure in a case actually depending in Court. Act. WM. BABTIE. Alt. R. W. LOWE. 4TH APRIL, 1865. SHERIFF COURT, ELGINSHIRE-ELGIN. (MR SHERIFF SMITH.) Poor-BARBARA LOGIE v. WILLIAM RHIND. Proof-Evidence of party-Bastard.-In an action for the aliment of an illegitimate child at the instance of the mother against the alleged father, and in which she was the only witness adduced. The defender, although in the closed record denying the alleged intercourse with her, having failed to adduce himself as a witness to contradict the evidence given by her-Held, and acquiesced in, that the paternity was proved. IN this case the defender, in the closed record, denied both the alleged intercourse and the paternity, and a proof was allowed. The pursuer adduced no witness except herself. She deponed, on examination as a witness, that the intercourse between her and the defender alleged in the record had taken place, and that the defender was the father of her child. She thereupon closed her proof. The defender was not present at the pursuer's proof, but his agent, on her proof being closed, applied for and got a new diet appointed for proof in defence. No proof in defence was led, or offered to be led, at that diet, and the term was circumduced. other circumstances forming the ground of judgment appear from the following Interlocutor and Note: The that the defender is the father of the said child: Finds in law that the defender is liable for the inlying charges and aliment sued for; Therefore decerns against him in terms of the conclusions of the summons: Finds the pursuer entitled to her expenses, etc. NOTE-The admissibility of the evidence of parties in their own cause involves the introduction, into the estimation of legal proof, of considerations very different from those which apply to the construction of the testimony of ordinary witnesses. Thus, if a party to a cause, adduced as a witness either by himself or by the opposite party, should in the course of his examination make admissions or statements contrary to his own interest, such admissions or statements, whether corroborated or not, would be treated, as regards the party himself, as legal proof, so full and complete as to supersede the necessity of any other evidence on the same point or points. The evidence of any ordinary witness, whatever might be its weight or credibility, could not per se be so treated. This is sufficient to demonstrate that the evidence of a party in a cause stands, as regards the cause, on a totally different footing from that of other witnesses. And although the Act of Parliament (16 and 17 Vict. c. 20), by which the change in the law of evidence has been effected, provides that the adducing of a party as a witness by the adverse party shall not have the effect of a reference to oath; the effect of this provision is distinguishable in various respects from the considerations which have been referred to. The effect of the change in question, applied to an action involving liability for the aliment of an illegitimate child, and not raising any question of status, would be that, if the defender, either in his pleadings or on oath, either as a witness or under reference to oath, admitted the paternity, such admission would be held sufficient and conclusive, and no farther proof or evidence would be necessary. An admission on the record, or even the non-denial of a fact averred by the opposite party, and within the knowledge of the party, has always been held to be full legal proof against the party so admitting or failing to deny. The A. S., 10th July, 1839, sect. 55, to the effect that in legal pleadings, and in regard to matters within a party's own knowledge, one is held to confess what he does not expressly deny, does not introduce any new principle on this point, but merely enunciates what was already the principle of law and common sense. But surely an admission or non-denial by a party under examination on oath in any shape cannot be less effectual than an admission or non-denial by the same party on the face of the record. There is only one farther step to the conclusion arrived at in the present case. The pursuer has sworn that the defender is the father of her child, and her statement in that emphatic shape has to be met by the defender. It is of course a matter within his personal knowledge whether or not there be grounds for the pursuer having so sworn. He knows that she has done so. He was, through his agent, warned at the time of what might be the consequences of his not coming forward to rebut the evidence of the pursuer, and accordingly he took an order for proof in defence. The defender did not appear at the diet appointed for that proof, and although an excuse was made for his non-appearance on that occasion, no adjournment was asked for, and he allowed the term to be circumduced against him without any opposition, and without expressing any desire to be allowed any other opportunity of appearing to tender his oath against that of the pursuer. Neither has he made any subsequent application to that effect, nor offered any explanation of his not having done so, although the point was constantly under notice while the cause was on the roll. On the contrary, notwithstanding distinct indication by the Sheriff-Substitute of the views to which he has now given effect, the desire was expressed on behalf of the defender that the case should be disposed of as it stands. It may be that the Sheriff-Substitute might ex proprio motu have specially ordered the defender to appear for judicial examination; but such a step did not seem to be in any way called for after what passed, and besides, such examination, not being on oath, would not, in the event of continued denial of paternity by the defender, have met the requirements of the cause. The Sheriff-Substitute has therefore abstained from making any order of this kind. Even if he had power to have required the defender to undergo examination on oath, he would have hesitated to force upon a person in the situation of the defender, who can have no conceivable ground for hanging back, except the consciousness that the pursuer claim is well founded, any temptation to the manifest perja which, on one side or other, is committed in nine out cit of the cases of disputed affiliation which come before t Court. In the whole circumstances, the Sheriff-Substitute feels to be his duty to hold the pursuer's case as proved, sail thinks he is fully supported in the views on which he co by the opinions expressed by Lord Deas, apparently w assent of the other Judges of the First Division, in the a Mackellar v. Scott, 8th Feb., 1862, 24 D., p. 504. Act. P. GATHERER. Alt. MURDOCH AND FORST 6TH APRIL, 1865. SHERIFF COURT, LANARKRHIRE-GLASGO (SHERIFFS SIR A. ALISON, Bart., AND STRATHIES PETER M'KEllar v. GeoRGE SMITH. Decree-Reponing-Implement-1 and 2 Vict., 119-Appeal.-An Interlocutor reponing is not opp able, and can only be recalled by the Supreme Com THE Sheriff-Substitute recalled an Interlocuta nounced by himself reponing a defender on an e statement, on certificaton by the Clerk of C tion.-Held that this was incompetent, and that 1 and 2 Vict., cap. 119, a reponing was effectual extent to which the decision had not been imple See suprà, p. 11. The defender appealed, and after a hearing the S pronounced the following judgment: Having heard parties' procurators under the defender peal upon the Interlocutor appealed against, and whe cess, Finds that by the Interlocutor of date 1st Now last, the Sheriff-Substitute reponed the defender aga decree in absence in toto upon a certificate of consig the expenses decerned for, and that this Interlocutor been brought under the Sheriff's review by appeal, the a was dismissed as incompetent, seeing the Interlocutor which was not appealable under the Sheriff Court AS that said Interlocutor was thus final in this Court, in these circumstances the Sheriff-Substitute had no p recall the same, and that the pursuer's only remedy application to the Supreme Court: Finds, separatia, Act 1st and 2d Vict. c. 119, expressly enacts that can only be reponed against a decree in absence, decree has not been implemented "in whole or a Finds that under these words the Courts of law strained to find the right to be reponed shut out, when ever small a proportion of the goods poinded under might bear to the total amount of the debt it contai that accordingly was the import of the decision by the Justice-Clerk and Lord Deas at Ayr, and of several cases of decrees under the Small Debt Act, have no a tion to cases of decrees pronounced under the preset Court Act, which expressly enacts (sect. 2) that reponim be competent against a decree in absence at any time implement has followed thereon, or against such parti as may not have been implemented:" Finds that as the in the present case is for £360, and the poinding whi lowed thereon attached effects only to the value of pounds, there was an ample margin left to sustain the petency of reponing the defender against the decree balance, but that it is unnecessary to enter into that the defender has already been reponed against the dea toto by the Interlocutor of 1st November last, which in this Court: Finds that it was not a mere accident ence of expression between the words as to reposi two statutes which has led to this marked distinct enactments, but that it was evidently done z portal object of the first Act being to shut out review and co gation, as much as in the present Sheriff Court Acti to open the door for full investigation, and facilitate the disposal of the important cases brought under it upon their merits: Therefore recalls the Interlocutor complained of, and in respect the Interlocutor reponing the defender is already final, remits to the Sheriff-Substitute to proceed with the case in terms of the statute. NOTE. As such important consequences may flow from a defender being reponed against a decree in absence, which is often done ex parte upon an application by the defender without notice to the pursuer, the Sheriff would recommend that in every case notice should be ordered by the Sheriff-Substitute to be sent to the pursuer of the application to be reponed, in order that he may be heard for his interest before an Interlocutor reponing is pronounced. Act. J. D. CHRISTIE for R. M'Culloch. 8TH APRIL, 1865. SHERIFF COURT, PERTHSHIRE-PERTH. (DR BARCLAY.) LORD WHARNCLIFFE v. RATTRAY. during the period of three consecutive months, have taken any proceeding therein, the action shall, at the expiration of that period (eo ipso) stand dismissed. But, secondly, the statute goes on to say, "Without prejudice, nevertheless, to either of the parties, within three months after the expiration of such first period of three months, but not thereafter, to revive the said action on showing good cause to the satisfaction of the Sheriff why no procedure had taken place therein, or upon payment to the other party of the preceding expenses incurred in the cause." It will thus be seen that the lapse of three months lulls a case asleep, with provision, however, for its being wakened within the next three months on good cause being shown to the satisfaction of the Sheriff, or in the absence of such satisfaction, then on payment of previous costs to the other party. This last has been held by the Supreme Court to admit of a revival by consent, seeing that the other party may waive his right to demand costs, 10th November, 1863, M'Intosh. It is thus seen that within the first period of three months the case is only asleep, and admits of being wakened in three modes. First, by the Court on satisfactory cause shown; Question—What is a step of procedure which arrests second, on an award of costs; and third, by mutual the lapse of a depending process? THE Sheriff-Substitute (Dr Barclay) issued the ing Notes in this case : consent. But after the six months the case becomes absolutely dead, and admits of no resurrection, except follow-perhaps by mutual consent. The pursuer, on 3d March, 1865, moved "to revive the action and renew last Interlocutor." The defender objected, that the action had fallen by the lapse of six months, which the pursuer, on his part, disputed; and having heard parties' procurators, and made avizandum with the motion, the Substitute is of opinion that the action has fallen by the lapse of six months without any udicial step of procedure therein, and that, therefore, it is now out of his power to revive the same. He therefore declines to write on the process; but, as the point of some practical importance, he now states his views in these separate Notes, so that the pursuer may have an pportunity of renewing his motion before the Sheriff at is next sittings. Under the old form of process, actions in Courts upreme and Inferior fell asleep by the lapse of year nd day without any judicial step having been taken berein. But an action might be wakened at any time ithin forty years, either by mutual consent of the arties, or by a summons of wakening, which was ecessary alike in a summary as in an ordinary action 5th February, 1835, M'Naught). Under this form the rm of "year and day" was reckoned from the last udicial act, which was generally held to be an Interutor of Court, and which therefore was quoted at ength in the summons of wakening. But it would pear from the case 16th December, 1840, The Lord Advocate v. The Heritors of Orkney, that the Court vere inclined to hold (though under peculiar circumtances), that an enrolment of a cause within the year vas a judicial act, preventing a cause going to slumber. The Sheriff Court Act, 16 and 17 Vict., has made the period for a process lapsing shorter, and the provision much more stringent, and has, by the 15th clause, divided the period of lapse into two sections. First, Where in any cause neither of the parties thereto shall The action of wakening is of course now at an end. The Substitute is not inclined to admit any act or proceeding as judicial which would not have prevented the lapse of a process under the old system from having that effect under the new. The new system was obviously intended, as the preamble of the Act declares-"To facilitate procedure in the Sheriff Courts in Scotland, and to make further provision for the cheap and speedy administration of justice in the said Courts." As observed by the Lord Justice Clerk (Inglis), in the case 7th November, 1862, Campbell v. Blackwood, "the clause was obviously intended to check, by very severe measures, the delays which took place in Sheriff Court proceedings." See also the case of Simpson v. 31 Jurist, 131. Perhaps the stringency has been overstrained in some particulars, so as to defeat its own purpose. But Sheriffs must take and enforce the law as they find it. At one time, in this Court, the provision as to lapse seemed to be made a plaything. The Interlocutor sheets were filled with a series of Interlocutors generally pronounced a week after the lapse of the first three months reviving the case, proceeding upon the stereotype, that "parties had been on terms of compromise." Since the Court has insisted upon some better and more truthful reason, there has been much less of this forensic sport. The present, which is a summary case, was brought into Court in March, 1864. After some preliminary procedure, a record was ordered, by condescendence and defences, on 11th May of that year. The condescendence was lodged, under a written consent, by the defender's solicitor on 11th July, and defences were lodged, also under a written consent, on 10th August. On 12th of August an Interlocutor was pronounced, assigning the 3d day of September thereafter for closing the record, and "allowing parties to revise their papers between and then." No other Interlocutor has been since pronounced, and therefore, as maintained by the defender, the case has irretrievably perished by the lapse of six months. The pursuer's procurator argues that the six months was interrupted by a marking by the clerk on the condescendence for the pursuer, to the following effect:"Revised condescendence, lodged 25th November, 1864. (Initialed) A. M'K." But the pursuer's contention is subject to two formidable objections. First, the process had fallen into its first stage of collapse on 12th November, so that there could be no vital step taken therein without a revival. But, secondly, there was no order by the Court to lodge "a revised condescendence," and, in point of fact, no separate revised paper was lodged; and, thirdly, assuming that the revisal of the original paper is to be held as a separate paper, it is clear that the clerk had no authority, even within the first three months, to receive it beyond the day fixed for the closing of the record, without the express allowance of the Court, or a written consent by the opposite party, also with the approbation of the Court. This is expressly provided for by the 6th section of the Act, and the last stipulation, it has been shown, was strictly followed, both in lodging the condescendence and defences. The solicitor for the pursuer next betook himself to the plea that the process had been kept all along in vitality by three separate receipts by himself on the inventory of process-one in September (but without farther date) uplifting "the lease No. 5 of process; " one on the 14th October borrowing the process; and one on the 24th of January this year, again borrowing the process. 10TH APRIL, 1865. SHERIFF COURT, RENFREWSHIRE-PAISLEY. (SHERIFFS PATRICK FRASER AND CAMPBELL.) ARCHIBALD MEIKLE v. NEIL GRAY. Sponsio ludicra-Horse racing-8 and 9 Vict., cap. 109. -The secretary of a horse racing meeting held stakes for a race, which the judge of the race de cided had been won by a certain horse. On the secretary's refusal to pay the stakes, the owner of the winning horse raised an action for payment.-Held that horse racing was a lawful sport or game, and that the plea of sponsio ludicra did not apply. THE defender in this action was designed as secretary and treasurer of, and in connection with, the Barrhead Annual Race Meeting, and the pursuer concluded for payment of £49 10s, being the stakes drawn for at the race meeting in June, 1862, for which he had entered horses, and, as alleged, had been declared by the judge at the meeting to be the winner, and thereby entitled to the stakes. The defender entered appearance. Inter alia, pleaded-(1) The defender being merely secretary to the committee of management, the proper parties had not been called to the action; (2) The action was incompetent, because its purpose was to give effect to a sponsio ludicra. To obviate the first plea the pursuer raised a supplementary action, calling the meeting committee as defenders, and this action was conjoined with the original process. The record was made up by condescendence and defences, and having been closed, and parties' procurators heard, the Sheriff-Substitute pronounced the following Interlocutor: Having considered the closed record in the conjoined actions, for the reasons in the subjoined note, Repels the preliminary together with the productions, and heard parties' procurators, defences, and, before further answer, allows to the pursuer s to the defenders, jointly and severally, a proof of their spective averments, and to each party a joint probation, the the proof against witnesses and havers, and appoints the proof pursuer leading in the proof: Grants diligence to all parties to to proceed on the 15th July next. The Substitute cannot for one instant hold that the ex parte borrowing of a process is a judicial step in the process. It is a mere official, and not judicial, act about the process, between the procurator and the clerk, which requires no notice to or interference by the opposite party, nor interposition by the bench. If the borrowing of a process or a part thereof from the clerk be a step in the process, much more must the returning of a process to the clerk be so, as in the proper direction; and still more the notice and issue of a process caption to recover the process, under the coercion of imprisonment, which assuredly is demonstrative of desire to compel procedure. But all such steps are not in, but only about the process. If such steps were to be allowed to keep a process in NOTE.-The first preliminary defence for the defender, Neil life, its longevity might greatly exceed that of humanity. Gray, has been confessedly obviated by the raising of the sup All that a clever agent had to do was to invest sixpence plementary action, which has been conjoined with the ori every three months in an act of borrowing and return-ginal action at the pursuer's instance against Gray. ing (like a game of shuttlecock), and a Sheriff Court process could thus endure much longer than a lifetime, perpetuating a deadly feud against some unfortunate family who all the time were in ignorance of the concealed mine under their feet which might be exploded at any future age. (The pursuer did not renew his motion before the Sheriff.) Act. J. & J. MILLER. Alt. SPOTTIS WOODE & PINKERTON. The second preliminary defence has also been repelled. It is true that the short statement in the summons merely avers that the pursuer's horses were declared to be the winners of pressly that they did actually win the races. But this is s the races which they respectively ran, and does not aver er defect which is quite capable of being cleared up and obviated on record; and in the condescendence the pursuer says that each of his said horses was first at the winning post on the occurrence of the several races in question, and that it was declared winner by the judge; and in his first ples in law be gives the gloss by which these words are intended to be read, viz., that the horses had gained and had been declared win ners. In short, while the pursuer's part of the record is very slovenly and inaccurate, he does distinctly assert and join issue on the question of fact, viz., did the horses win the several races or not? The third plea is obviously untenable. The alleged com mittee are nowhere named, the defender Gray, though calling himself the secretary and treasurer of the races, cannot even name all the members of the committee himself (vide defer der's statement of facts, Art. 1, Defences No. 5 of process), |