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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sharpe v Kincaid [1838] CS 16_340 (21 January 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS0340.html Cite as: [1838] CS 16_340 |
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Page: 340↓
Subject_Process—Bill Chamber—Caution.—
A bill of suspension presented without caution was refused without answers by the Lord Ordinary during the Christinas vacation; within three days of the sitting of the Court a second bill was presented, offering caution, but was also refused de plano; the interlocutors on both bills being reclaimed against, the Court remitted to allow the first bill to be answered on caution being found.
The following notice, dated 18th December, 1834, was posted in the Bill-Chamber, by order of the Court:—
“The Court understanding that it has been the practice in the Bill-Chamber to pass Bills of Suspension upon caution only, when they had been presented without caution; and being of opinion that that practice is not sanctioned by any Act of Sederunt or other authority, and ought not to be continued, have determined that in future, when a bill is presented without caution, it shall either be passed without or refused, and have directed that a notice to that effect shall be put up in the Bill-Chamber.”
Sharpe presented a bill of suspension of a charge by Kincaid, without caution or consignation. The Lord Ordinary, on the 11th January last, without ordering answers, “having considered this bill, which is presented without caution,” refused the same.
Sharpe then presented another bill, but with an offer of caution. This was likewise refused de plano, on the 13th, his Lordship stating in a note, that “a former bill, upon the same ground, having been refused, not merely because presented without caution, but also on the merits, the Lord Ordinary considers this as a second bill, which is conceived to be incompetent within three days of the sitting down of the Court.”
Sharpe reclaimed against both interlocutors.
On the Court proposing to remit to the Lord Ordinary to order the first bill to be answered, a question arose as to the competency, under the Bill-Chamber notice above quoted, of an offer of caution being made at the bar, with reference to a bill which had been presented without caution.
Their Lordships remitted to the Lord Ordinary to order the first bill to be answered as upon caution.
Solicitors: Campbell and Macdowall, S. S. C.— Gibson-Craigs, Wardlaw, and Dalziel, W. S.—Agents.
