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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Herriot v. Jenkinson [1868] ScotLR 6_27 (29 October 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0027.html Cite as: [1868] ScotLR 6_27, [1868] SLR 6_27 |
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Page: 27↓
Dean of Guild Court, North Berwick.
(1) that an action is in dependence whenever the summons is executed; (2) that under the Act 13 and 14 Vict., c. 36, tho respondent in an advocation is entitled to get the action dismissed if a report from the lawyers for the poor is not forthwith produced, and that he is entitled to put the case to the roll for that purpose without putting up protestation for non-enrolment; (3) that an offer to find full caution in a depending advocation cannot be affected by the provision of the New Court of Session Act, dispensing with caution in appeals.
A party brought an advocation upon juratory caution, and called the case in the Court of Session on the 12th of May last. In advocations upon juratory caution it is provided by the Act 13 and 14 Vict., c. 36, that the advocator shall forthwith proceed to the probabilis causa litigandi reporters and obtain from them a report. In the present case this was not done. On the 24th of October the respondent thereupon put the case to the roll of the Lord Ordinary (MANOR), and moved his Lordship to dismiss the advocation in respect the report required by the statute had not been furnished. In answer to this motion, the advocator offered to find full caution in terms of the proviso of the Act; and in respect of said offer the Lord Ordinary allowed the advocator eight days to find caution. The advocator now reclaimed, and maintained that he was not bound by his offer to find caution, because by the new Court of Session Act caution is abolished in advocations. He further maintained that the interlocutor of the Lord Ordinary was incompetently pronounced, because, if the case was to be ruled by the old procedure, the respondent was not entitled to bring the case before the Lord Ordinary without protestation for non-enrolment, which had not been done.
The Court held that an action is a depending
Page: 28↓
process whenever the summons is executed; that the new Act did not apply, because the new Act dealt with appeals, and this was an advocation; and that, on the failure of the advocator to produce a report from the lawyers for the poor, the respondent was entitled, without putting up protestation, to ask the Lord Ordinary upon that ground to dismiss the action, The Court adhered to the interlocutor of the Lord Ordinary.
Counsel for Advocator— Mr W. A. Brown.
Counsel for Respondent— Mr Trayner.
Agent for Advocator— James Bell, S.S.C.
Agent for Respondent— Scott & Mann, S.S.C.
