Scottish Court of Session Decisions

The interlocutor in this case, reported ante, XIII. 407, was reversed in the House of Lords on 6th July, 1835, when the following judgment was pronounced:—“It is ordered and adjudged by the Lords Spiritual and Temporal, in Parliament assembled, that the interlocutors, so far as complained of in the said appeal, be, and the same are hereby reversed; and the Lords find and declare, that no obligation arises upon the bond, dated the 28th September, 1825, to pay any balance alleged to be due to the bank on William Martin's drafts, so far as such drafts were drawn and issued beyond the statutory distance, or wrong dated in point of time or place, and were known by the agent of the bank to be drawn beyond such distance, or to be wrong dated in point of place, or to be wrong dated in point of time; and so far the Court of Session is directed to suspend the charge, and to find expenses due, according to the result of the enquiry touching the manner in which the balance is constituted; and with this finding and declaration, it is farther ordered, that the cause be remitted back to the Court of Session, to do therein as shall be just and consistent with this judgment.”

The case having been thereafter remitted to the Lord Ordinary, his Lordship entertained doubts as to the true meaning and effect of this judgment and remit, and especially as to the question, whether, on the one hand, it limited and restrained the enquiry and proceeding therein directed to the matters particularly specified, and imported not only a direction to suspend the letters and charge as to such drafts as should appear to have been known to be illegal in the respects mentioned, but also a direction to find the said letters and charge orderly proceeded as to all drafts which should not turn out, in the result of such enquiry, to be liable to those special objections; or whether, on the other hand, the judgment left it open to the suspenders, under the general reversal and words of remit, still to insist upon any of their other grounds of suspension properly set forth by them upon the record, and applicable to drafts which might not be impeachable on the special grounds therein mentioned.

The Lord Ordinary having made avizandum to the Court on minutes of debate,

Their Lordships were of opinion that the matters specified in the judgment of the House of Lords ought to be first enquired into, and thereafter, that the other grounds of suspension might be gone into, and remitted to the Lord Ordinary, with instructions that, as to the matters of fact which now remain to be investigated, his Lordship should be guided by the special terms of the remit by the House of Lords.