Scottish Court of Session Decisions

William Dutch presented a bill of suspension without caution of a charge by Alexander Webster and others, upon a decreet in absence, to make payment of a debt, and to deliver up papers. The Lord Ordinary, on 24th June, passed the bill on caution, and on payment of £6, 6s. of expenses in obtaining the decree in absence. This interlocutor was without delay entered in the minute-book. Dutch failed to pay the £6, 6s., or to find caution; and the chargers having obtained from the Bill-Chamber clerk a certificate of no caution, on 14th July, the Lord Ordinary, pronounced this interlocutor: “In respect that the complainer has failed to find caution in the suspension within mentioned, in terms of the Act of Sederunt, a certificate to that effect having been produced, and it also being stated that the said sum of expenses has not been paid, finds the complainer liable in expenses, allows an account thereof to be given in.” On 30th July, the chargers obtained decree for £18, 1s. 10d. of expenses, besides dues of extract, and this decree was extracted.

Dutch presented a second bill of suspension, and the Lord Ordinary, on 2lst August, “having considered this bill, with the answers thereto and productions, passes the bill, upon payment of £6, 6s. of expenses, but without caution.”

The chargers reclaimed, and pleaded, 1. That the second bill of suspension was incompetent; because, as there were seventeen days of the Session to run at the date of the interlocutor passing the first bill on caution, and it was immediately entered in the minute-book, the only mode in which the suspender could bring it under review was in terms of § 15 of Act of Sederunt 11th July, 1828, to reclaim against it by a note to the Court, which he did not do. 2. If it was competent to present this bill, it could only be done in compliance with § 18 of the Act of Sederunt, and, therefore, on payment of the expenses incurred by the chargers under the former bill.

The suspender answered—1. Although the first bill was offered without caution, it was passed only on caution; and although this was during Session, yet it was not till vacation, that the certificate was issued of no caution having been found. The issuing of that certificate was the equivalent of an interlocutor of refusal; and, therefore, the date when the bill was refused fell in the vacation. A second bill therefore was competent. 2. The 18th section of the Act of Sederunt did not apply to this case more than to any other, in which a first bill was refused during vacation.

The Court, considering the question of form to be of much importance, delayed the case for the purpose of advising with the other Judges. This having been done, the Lord President intimated that their Lordships considered the second bill to have been competently presented; and his Lordship observed that it would be proper to introduce an alteration into the practice of the Bill-Chamber, and that notice should be put up to that effect.

It was understood that their Lordships considered the issuing of the certificate of no caution to have come in the place of an interlocutor refusing the bill.