Scottish Court of Session Decisions

On 28th February 1867, the Lord Ordinary ( Barcaple) pronounced this interlocutor:—“On the motion of the advocators, makes avizandum with this advocation to the Lords of the First Division, in terms of the statute; appoints them to print the record, with the notes of additional pleas in law, and such productions as may be deemed necessary, and to box the same to the Court; and grants warrant for enrolment in the Inner-House Rolls.” The advocators having neither printed nor enrolled in terms of this interlocutor, the Lord Ordinary, on 5th June 1867, on the respondent's motion, appointed the advocators, within the next eight days, to print and box the record, pleas in law, and productions to the Inner-House, in terms of the previous interlocutor.

The advocators did not obey this order. The respondent then moved the Lord Ordinary to dismiss the advocation. The Lord Ordinary doubted his power to do so under the Court of Session Act 1850, 13 and 14 Vict., c. 36; sec. 32 of which enacts that the Lord Ordinary before whom the advocation is enrolled shall, at the first calling of the cause, if a motion to that effect be made by either party, appoint the record, &c., to be printed and boxed for the Inner-House, and shall report the cause to the Inner-House. His Lordship was inclined to think that he was functus officio after pronouncing the first interlocutor, had it not been for the case of Miller v. Logan, 20 D., 522, in which case it was held that where a Lord Ordinary had, on the motion of the respondent in an advocation, pronounced an interlocutor reporting the cause, and appointing the record, &c., to be boxed, and where the respondent became bankrupt before obtempering that order, a motion for intimation to the respondent's trustee was properly made before the Lord Ordinary.

The Lord Ordinary reported the point.