Scottish Court of Session Decisions

A note of suspension of a decree of removal was passed on caution; before caution was found, but within the fourteen days allowed for finding it, the respondent died, and an application was accordingly made to sist the respondent's successor in his room. The Lord Ordinary (Mure) had some difficulty as to whether this was a competent proceeding in the Bill Chamber, and whether the Lord Ordinary was not, after passing the note, functus officio. His Lordship accordingly reported the point.

The Court were unanimously of opinion that the application was competent. An interlocutor passing a note of suspension on caution was an interlocutor subject to a suspensive condition. If the condition were not purified, the interlocutor fell with it, and the case still remained in the Bill Chamber. Besides, if the original charger had been alive, he would have been entitled to go before the Lord Ordinary and have it found that no caution had been found, and might then obtain decree for expenses. This alone showed that the Lord Ordinary on the Bills was not functus.