Scottish Court of Session Decisions

This was a reduction of a judgment of the Sheriff of Morayshire, decerning the pursuer to pay the defender certain sums of money pursued for in an action by her. The judgment having been extracted, and appeal being no longer competent, the pursuer brought a reduction of the decree. A charge had been given on the extracted decree, but it had not been implemented, and no further steps of diligence were taken by the defender. The defender now pleaded against satisfying the production that the action was incompetent in respect suspension was the proper remedy to stay the execution of diligence, and that reduction was not competent until every other competent remedy had been exhausted. After bearing parties, the Lord Ordinary (Ormidale) pronounced the following interlocutor:—“The Lord Ordinary having heard counsel for the parties, and considered the argument, repels the preliminary defences, and, under reservation in the meantime of all questions of expenses, appoints the case to be enrolled with a view to further procedure.

“Note.—It was maintained in support of this defence that reduction, even of an extracted decree, is incompetent wherever suspension would be competent. On the other hand, it was maintained by the pursuer that the decree complained of in the case being extracted, reduction was competent as well as suspension. Both parties cited and relied on the case of Scoular v. M'Lachlan, 20th March 1864, 2 Macph. 995.

“In the case there referred to all that was actually decided was that reduction was an incompetent mode of reviewing an Inferior Court process, the decree in which has not been extracted. But in the opinion of the Court a great deal of valuable matter is to be found bearing on the present question.

“According to the Lord Ordinary's reading of the Lord President's opinion in Scoular's case, his Lordship would appear, although he had no occasion to state so in so many words, and is careful to avoid laying down any general rule on the subject, to have held and assumed that reduction would have been a competent mode of review if the decree complained of had been extracted. Lord Deas is quite distinct in the expression of his opinion to this effect, while Lord Ardmillan would seem, on the strength of a dictum of Lord Moncreiff in the case of Martin v. Barclay, 12th June 1844, D. 1136, to have entertained a different opinion. But with great deference, the case of Martin v. Barclay is very special, and so very different from the present as to render it impossible to hold that the solitary and somewhat vague observations, as reported, which appear to have fallen from Lord Moncreiff, can have any weight in the present discussion, even supposing it was of the nature which Lord Ardmillan thought it was, although that is far from being clear.

“The Lord Ordinary thinks, therefore, that the authority of the case of Scoular was in favour of the interlocutor pronounced by him in the present case, and that being so. and having regard to the precedents cited in ‘Shand's Practice’ pp. 613–14, and particularly to the cases of Jack v. Umpherston, 15 S. 1833, and Brown v. Anderson and Stair, 16 S. 977, in which the Court appears to have assumed that reduction of an extracted decree is clearly competent, the Lord Ordinary has not had much difficulty in repelling the preliminary defences in this case. In doing so he has not only acted on the precedents, but also on what he himself has always understood to be the practice of the Clerks of Court in the Outer House. Nor is there much in the observation that reduction has been resorted to in order to avoid the necessity of finding caution, for as reduction does not stop the execution of diligence, the defender may proceed against the pursuer so as to compel him to suspend and find caution.”

This interlocutor has become final.