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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Latham v. Edin. and Glas. Railway co [1866] ScotLR 2_210_1 (19 July 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0210_1.html Cite as: [1866] SLR 2_210_1, [1866] ScotLR 2_210_1 |
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Page: 210↓
Held that the Lord Ordinary cannot entertain an application for recal of arrestments used on the dependence after the merits of the action have been disposed of by the Inner House. Question whether he can do so at any time after he has decided the cause?
This case was dismissed yesterday as irrelevant. The pursuer had used arrestments on the dependence, and the defenders applied to-day, by petition in the Outer House, to have the arrestments recalled on caution, the pursuer having intimated his intention to appeal the judgment of yesterday to the House of Lords. The petition was presented under section 20 of the Personal Diligence Act (1 and 2 Vict. c. 114), which enacts that “it shall be competent to the Lord Ordinary in the Court of Session before whom any summons containing warrant of arrestment shall be enrolled as Judge therein, or before whom any action on the dependence whereof letters of arrestment have been executed has been or shall be enrolled as Judge therein, and to the Lord Ordinary on the Bills in time of vacation, on the application of the debtor or defender by petition duly intimated to the creditor or pursuer, to which answers may be ordered, to recal or to restrict such arrestment on caution, or without caution, and dispose of the question of expenses as shall appear just.”
The Lord Ordinary (Kinloch) reported the application. He had difficulty in holding that he had power to entertain it, seeing that the action was no longer in dependence, having been dismissed, or at least was no longer in dependence before him.
Shand appeared for the defenders, and
Johnstone for the pursuer.
The Court, after some discussion, were of opinion that the Lord Ordinary had no power to entertain the application, and directed him, in respect of the dismissal of the action, to refuse it. The Lord President expressed great doubts whether a Lord Ordinary had power to deal with such an application after the case has gone to the Inner House. It appeared to him that section 20 of the Personal Diligence Act gave the Lord Ordinary power to deal with arrestments only while the case remained before him.
The Lord Ordinary accordingly dismissed the application, and found the defenders liable in two guineas of expenses.
Solicitors: Agents for Pursuer — Gibson-Craig, Dalziel, & Brodies, W.S.
Agents for Defenders— Webster & Sprott, S.S.C.
