Scottish Court of Session Decisions

Lord President—This is a point of some delicacy, but at the same time I think we should grant the relief asked by Messrs Blyth & Cunningham.

The reclaiming-note against Lord Adam's interlocutor was sent to the roll on 12th May, and that interlocutor of Lord Adam was a final judgment of which extract could of course be obtained. But that reclaiming-note brought the process here, and nothing could be done till that reclaiming-note was disposed of if the effect of the reclaiming-note was to bring here as respondents both sets of defenders. But it rather appears to me that, taking the title of the reclaiming-note, it is one in which the reclaimers represent the Messrs Adams as respondents and Messrs Blyth & Cunningham as defenders and not respondents. Now, taking that along with the letter written by the pursuers' agents to the agents for Blyth & Cunningham, we must hold that the reclaiming-note is one in which the pursuers do not seek to object to that part of the interlocutor which assoilzies Blyth & Cunningham with expenses. I do not see why Blyth & Cunningham should not be entitled to proceed under that part of the interlocutor which is not to be challenged, and which allows them to give in an account of expenses, and remits to the Auditor to tax and report. That is just what Blyth & Cunningham did, for they lodged an account and then asked the Auditor to fix a diet for taxation. That was done, and the pursuers in accordance with what appears to be their intention from the reclaiming-note and from the title to which I have alluded, attended the audit, and with effect, for they got £50 struck off the account. Then the Auditor reports to the Lord Ordinary, and quite rightly, for it was by the Lord Ordinary that the remit was made, and the Lord Ordinary, on Blyth & Cunningham's motion, approves of the account and decerns for the amount as taxed.

The difficulty of the extractor is that the process is here and not in the Outer House; but that is only a technicality, and does not avail in the circumstances of the case. The real question is, whether in the position of the process on 27th June the Lord Ordinary had jurisdiction to pronounce this interlocutor. I think that he had, and that the course we should follow is, on Mr Murray's motion to authorise the extractor to extract this decree.

Lords Deas and Mure concurred.

Lord Shand—I think it right to say that although I concur with your Lordships, in order to remove the practical difficulty which has arisen, I am not prepared to say that such an order as we are now to pronounce is necessary.

I think that the Lord Ordinary is the person to say whether a cause is properly before him or not; and if, as frequently happens, having the cause before him as regards one set of defenders he gives decree, it rather seems to me that it is the extractor's duty to respect that decree, and that the mere circumstance of the process being in the Inner House for one purpose should not affect the extractor in the discharge of his duty.

I concur with your Lordships, as the difficulty has arisen, that relief should be granted in the circumstances. I only wish to guard against saying anything that might indicate that I considered such an order necessary.

The Court pronounced this interlocutor:—

“The Lords on the motion of the defenders Messrs Blyth & Cunningham, upon the report of Lord Lee, authorise the extractor to proceed with extracting the interlocutor of Lord Lee for Lord Adam, of date 27th June 1883.