Scottish Court of Session Decisions

Lord President—The interlocutor of the Lord Ordinary consists of two parts, one approving of the proposed issue, and the other fixing a day for the trial of the cause. For obvious reasons, and in order to allow the party objecting to the terms of the proposed issue an opportunity of appealing, these interlocutors ought to be kept separate, and an interval of six days ought to be allowed to elapse between the two interlocutors. I can quite understand, however, why in the present case the Lord Ordinary approved of the issue and fixed the day for trial in the same interlocutor. It was for the convenience of both parties, and in order that the 2nd of July, which the Lord Ordinary had offered the parties as the day of trial, might not be lost. As the Lord Ordinary had not many available days of trial, if the six days had been allowed to elapse between the approving of the issues and the fixing of the day of trial, then before the parties could again have come before the Lord Ordinary, not only might they have lost the 2nd of July as the day of trial, but the Lord Ordinary might not have been in a position to offer the parties another day this session.

On the other hand, the right of a party, who is dissatisfied with an issue which has been approved by a Lord Ordinary, to move the Inner House to have the terms of such an issue varied, is a very valuable one, and one which must not in any way be interfered with.

The case of Craig v. Jex Blake, to which we were referred, differs materially from that now before us. There one day elapsed between the approving of the issue and the fixing of the day of trial, and it was the defender who moved the Lord Ordinary to fix a day for the trial of the cause. No objection was then taken by her to the proposed issue, and it was reasonable to suppose upon that account that she was satisfied with its terms. Six days thereafter the defender moved the Court to vary the issue, but the Court in these circumstances held the motion to be incompetent. That, however, as I have already explained, was a very different state of facts from what we have here to deal with, and I am therefore for repelling the objection which has been taken to the present motion.

Lord Shand — In the case of Craig v. Jex Blake an issue was lodged for the pursuer, to which no objection was stated by the defender, who on the following day moved the Lord Ordinary to fix a day for trial. To this motion the pursuer objected, and six days after the defender moved the Court to vary the issue which had been approved of by the Lord Ordinary, but the defender in the circumstances was held to be personally barred from stating any objection to the terms of the issue. It does not appear to me therefore that much assistance can be obtained from the case of Craig v. Jex Blake, as the circumstances were materially different.

As to the Outer House practice in such cases, I would not object to the course which the Lord Ordinary has adopted provided both parties consented to this being done. It might be desirable in such cases that a minute should be framed intimating that the parties consented to the Lord Ordinary approving of the issue and fixing a day for the trial of the cause in the same interlocutor. In the present case, however, I agree with your Lordship that the objection to the competency of this motion cannot be sustained.

Lord Adam—I am of the same opinion. I think that if the parties are agreed there can be no objection to the Lord Ordinary approving of the issue and fixing the day for trial in one interlocutor, but if the parties are not at one, and if it is to be held on the authority of Craig v. Jex Blake that by consenting to the Lord Ordinary fixing a day for the trial of the cause all right of objecting to the terms of the issue is removed, then where any difficulty arises as to the terms of an issue, I think that the Lord Ordinary should not fix the day of trial in the same interlocutor in which he approves of the terms of the issue.

Lord Mure was absent.

The Court repelled the objections to the defender's motion to vary issues, and sent the case to the Summar Roll for discussion.