Scottish Court of Session Decisions

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Cite as: [1838] CS 16_1133

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SCOTTISH_Court_of_Session_Shaw

Page: 1133↓

016SS1133

Scott

v.

Thom
No. 211

Court of Session

2d Division

Bill-Chamber

June 9 1838

Lord Jeffrey, Lord Justice-Clerk, Lord Medwyn, Lord Glenlee, Lord Meadowbank.

Robert Scott, Suspender.— Counsel:
A. M'Neill. Robert Kilgour Thom, Charger.— Counsel:
Moir.

Subject_Process—Bill Chamber—Caution.— Headnote:

A party having presented a bill of suspension without caution or consignation, and the Lord Ordinary, after answers had been given in, having passed the bill on the suspender offering to find caution,—the Court remitted to “refuse the bill,” considering it to be ill-grounded on the merits, and being at the same time of opinion that the Bill Chamber notice, prohibiting caution from being received, when a bill had been presented without caution, was in force and ought to be adhered to.

Facts:

Scott brought a suspension of a charge by Thom for payment of a certain sum as the rent due of a possession at Peterhead, occupied by Scott. The bill was presented without caution or consignation. Answers having been given in, the Lord Ordinary “having advised this bill, with the answers and productions, and the suspender having intimated that he is willing to find caution if found requisite by the Lord Ordinary, on caution passes the bill.”

Thom reclaimed, contending, on the authority of the bill-chamber notice of date 18th December, 1834 (quoted ante, p. 340), that the bill having been presented without caution, it ought either to have been passed without caution or refused, and that it was incompetent for the Lord Ordinary to pass it upon a subsequent offer of caution.

Scott answered that the regulation in question had not been acted upon, and referred to Sharpe v. Kincaid, ¹ Jan 21, 1838.

_________________ Footnote _________________

¹ Ante, p. 340.

Lord Justice-Clerk.— Sharp v. Kincaid was a very special case. It is a mistake to say that the regulation of 1834 has not been acted upon. If I were Ordinary on the bills, I should think it necessary to act upon it; and I am for refusing the bill.

Lord Medwyn.—I differed from the majority of the Court as to this regulation, which it must be observed is not an Act of Sederunt. But in the present case I would refuse the bill on the merits.

Lord Glenlee.—Besides the other consideration, I think the bill ought to be refused on the merits.

Lord Justice-Clerk.—I hare no objections to this, but I think the Bill-Chamber regulation ought not to be deviated from.

Lord Meadowbank.—I agree that the bill should be refused. I should not wish it to go abroad that the point of form established by this binding regulation was to be disregarded.

The Court accordingly altered, and remitted to refuse the bill.

Solicitors: H. Handyside, W.S.— J. Taylor, S.S.C.—Agents.

SS 16 SS 1133 1838

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