Scottish Court of Session Decisions

In the action at the instance of the Steel Company of Scotland v. Tancred, Arrol, & Company, reported supra, p. 305, the Lord Ordinary ( Trayner), after sundry procedure, pronounced an interlocutor on 13th June 1888 in these terms—“Interpones authority to the joint minute No. 516 of process, and in respect thereof decerns against the defenders for £14,850 sterling; finds the defenders liable to the pursuers in expenses.”

Tancred, Arrol, & Company reclaimed against this interlocutor, and their Lordships of the First Division on 1st February 1889, inter alia, recalled the interlocutor of 13th June 1888, in so far as it found the defenders liable in expenses, and in place thereof found the defenders liable in expenses with the exception of the expenses of the proof, and remitted the account to the Auditor to tax and report.

The Auditor taxed the account of the said expenses at £241, 10s. 1d. Tancred, Arrol, & Company presented a petition of appeal to the House of Lords against the various judgments in the cause.

On March 13th 1889 the Steel Company of Scotland presented the present petition for interim execution pending appeal in terms of 48 Geo. III. cap. 151, sec. 17, and praying the Court to approve of the Auditor's report on their account of expenses, and to decern therefor; and further, to allow decree for the taxed amount of the said expenses, and also decree in terms of the various interlocutors in their favour, to go out and be extracted, and execution to proceed thereupon, notwithstanding the appeal, to the effect of enabling the petitioners to recover payment of the sums of principal, interest, and expenses due to them, in terms of the said decrees, with the expenses of extract and of this petition, and that upon caution in common form, to repeat the same, in the event of the interlocutors above recited being reversed in the House of Lords.

The Act 48 Geo. III. cap. 151, sec. 17, declares—“That when any appeal is lodged in the House of Lords, a copy of the petition of appeal shall be laid by the respondent or respondents before the Judges of the Division to which the cause belongs; and the said Division, or any four of the Judges thereof, shall have power to regulate all matters relative to interim possession or execution, and payment of costs and expenses already incurred, according to their sound discretion; having a just regard to the interests of the parties as they may be affected by the affirmance or reversal of the judgment or decree appealed from.”

Argued for Tancred, Arrol, & Company that the appeal to the House of Lords would shortly be heard and disposed of; that the amount carried by the decrees was very large, and that the expenses of raising and transferring the money would be great; and in the event of the judgment of the Court being reversed by the House of Lords this expense would all be thrown away, as there would then require to be a re-transfer; that as the Court had the amplest discretion as to the regulation of all matters relative to interim possession, it was not in the circumstances desirable that execution should pass.

At advising—