Scottish Court of Session Decisions

Henderson held an unextracted decree of the Inner-House against Paul and another, as debtors conjunctly and severally liable. Paul offered payment of the sums in the decree, on condition of Henderson granting an assignation thereof to a third party, and under protest of Paul's right to appeal. Henderson refused the assignation as asked, intimating, however, that before extracting the decree he would give due notice. He further intimated that he would apply for payment of a sum consigned in the process in which the decree had been obtained, and in respect of the consignation of which arrestments on the dependence had been recalled. Paul, upon this, consigned the sum in the decreet, and raised a suspension thereof, and in respect of this consignation in the suspension, asked to get up the money consigned in the process in which the decree had been obtained.

The Lord Ordinary on the Bills ( Mure) refused the note of suspension, as premature and unnecessary, in respect there was neither charge nor threatened charge, the decree not being extracted.

The Lord Ordinary ( Ormidale) in the action in which the decree had been obtained refused Paul's motion to get up the consigned money.

Paul reclaimed against both interlocutors.

Pattison and Macdonald for him.

Clark and Pattison in answer.

To-day the Court adhered to Lord Ormidale's interlocutor, but recalled Lord Mure's; and upon Paul's finding caution, passed the note to try the question. The majority of the Judges were of opinion that suspension was a competent remedy, assuming unconditional payment of the sum in the decree had been tendered and consigned on refusal. The question whether the tender under conditions here made was equivalent to an offer of a payment raised a nice and important question, on which they expressed no opinion, that being a question on the merits, to be determined on the passed note.