Scottish Court of Session Decisions

Lord President—One of these processes of multiplepoinding is before Lord Mackenzie, as Lord Ordinary, the other is before Lord Mure, both bringing the same fund into Court. The one action is raised by one party interested in this fund, and the other by another party so interested. The British Linen Company's Bank, as holder of the fund, is made sole nominal raiser in one case, and the same Company is nominal raiser, along with the holders of the deposit-receipts, in the other. This, I understand, is the state of the circumstances so far. Now, it appears that both cases were called in the same week, but the case before Lord Mackenzie was called one day prior to that before Lord Mure. The difference of time is slight no doubt, but that does not affect the question. As both these were defended causes, they could not go to any roll of undefended causes; and so, as the weekly Outer-House Rolls have been discontinued in terms of the Court of Session Act of 1868, neither of them could be enrolled before their respective Lords Ordinary in the sense of the Act of Sederunt of 1838. The difficulty, therefore, in determining at what point of time a cause is brought before a Lord Ordinary, in the sense of 48 Geo. III, c. 151, §9, arises in this cause for decision—the A.S. of 1838 being no longer applicable to the circumstances. From the time a cause is called there is now no occasion to enroll it at all, unless the Lord Ordinary directs it to be enrolled for the purpose of ordering revised condescendences, until it comes to be enrolled to close the record. The case, however, of a multiplepoinding was not contemplated by the Act 1868 at all. But if defences, by way of objections, are lodged, which is the case in both the causes here, then an enrolment does become necessary; and accordingly an enrolment did take place in both cases, and again the first enrolment was before Lord Mackenzie on a Tuesday, that day being Lord Mure's blank day,—the enrolment before Lord Mure taking place on the next day, Wednesday. Now, we have considered the question—what is, within the meaning of the statute of 1808, the earlier cause—with great care, and have taken the advice of the whole Judges on the point, and the opinion which I am about to deliver may be taken as the opinion of the whole Court, given with the object of securing uniformity of practice. We think that under the Act of 1868, and the relative Act of Sederunt of 14th October 1868, and particularly the eighth section thereof, a process must be held to be brought before a Lord Ordinary when it is called. At the calling of the case the partibus of the summons is made to specify both the Lord Ordinary and the Division; and when called it is thus within the control of a particular Lord Ordinary. After that it cannot be brought before any other Lord Ordinary. The Lord Ordinary and the Division are both fixed, and the pursuer can make no change. We are therefore of opinion that, in this and similar cases, the action which is first called must, in the sense of the Act 1808, now be taken as the leading cause.