Scottish Court of Session Decisions

This was a suspension of a charge upon a decree in foro pronounced by Lord Barcaple in favour of the respondents for payment of a sum of £6000 out of a fund in medio in a process of multiplepoinding. The grounds of suspension were—(1), that the decree was pronounced in favour of, and the charge was given by, parties resident in England without a mandatory having been sisted; (2), that the respondents had no sufficient title to grant a discharge to the complainer; (3), that the decree was disconform to, and went beyond the terms of, the judgment which it was intended to carry out; and (4) that the money being in bank, the complainer was not in safety, and had not the power to make the payment without a special warrant to uplift, which the chargers had failed to obtain.

The Lord Ordinary (Mure) refused the suspension, holding that the objections stated were competent but omitted before the Lord Ordinary when he heard parties on the motion for interim payment; and further, that they could not be pleaded by way of suspension to a charge upon a final decree in foro, which the complainer should have reclaimed against ( Lumsdaine v. Australian Company, 18th December 1834, 13 S. 215). His Lordship also thought that the objections were ill founded on the merits.

The Court to-day, after hearing Mr Webster for the suspender, adhered.