Scottish Court of Session Decisions

Subject_1Process
Subject_2Case Remitted, by Court in England
Subject_3Order of English Court
Subject_422 and 23 Vict. c. 63, sec. 1.
Facts:

The Act 22 and 23 Vict. c. 63, sec. 1, enacted that “If in any action depending in any Court within Her Majesty's dominions, it shall be the opinion of such Court that it is necessary or expedient for the proper disposal of such action to ascertain the law applicable to the facts of the case as administered in any other part of Her Majesty's dominions on any point on which the law of such other part of Her Majesty's dominions is different from that in which the Court is situate, it shall be competent to the Court in which such action may depend to direct a case to be prepared setting forth the facts, … and upon such case being approved of by such Court or a Judge thereof, they shall settle the questions of law arising out of the same on which they desire to have the opinion of another Court, and shall pronounce an order remitting the same, together with the case, to the Court in such other part of Her Majesty's dominions, being one of the Superior Courts thereof, whose opinion is desired upon the law administered by them as applicable to the facts set forth in such case, and desiring them to pronounce their opinion on the questions submitted to them in the terms of the Act.” An order pronounced by Mr Justice Fry in a cause depending before him in the Chancery Division of the High Court of Justice in England was in these terms:—“And it is ordered that a case be settled before the Judge in Chambers for the opinion of the Court of Session in Scotland as to whether the heritable bond for £19,000, of which it is admitted that the testator was possessed at his death, was included in and passed by the deed-poll dated the 1st May 1872, in the bill referred to, or whether the said sum of £19,000 when paid off formed part of the testator's personal estate.” The case as settled was authenticated by the chief-clerk of the English Court, but there was no order by Mr Justice Fry remitting the case to the Court of Session and desiring the opinion of that Court. Held that until such an order was pronounced the Court of Session could not consider the case.