Scottish Court of Session Decisions

In an action of declarator against the Earl of Dundonald and others, the summons was called on 24th November, 1836. It was taken out to see, and defences were lodged by one of the defenders on 6th December, Ob contingentiam of this action, the Earl and his trustee brought an advocation of a process at his Lordship's instance against the respondent Henderson, depending before the Sheriff of Lanarkshire, the letters of advocation being dated 29th November, and signeted 17th December, 1836. On the 20th December, protestation for not enrolling and insisting in the above action was put up by that defender who had appeared, but the action was not thereafter enrolled.

To the competency of the advocation it was objected by Henderson, that the process, ob contingentiam of which it was brought, was not properly a depending process when the letters of advocation were expede, no enrolment having taken place before a Judge, and the action being still at the absolute disposal of the pursuer.

To this it was answered, that the action of declarator having been called, and not having been taken out of Court, quoad the advocators, either by protestation, abandonment or otherwise, there was no legal objection to the advocation.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note ^*:—“In respect that the letters of advocation, ob contingentiam, were expede and signeted after the summons of declarator had been called in Court, and returned with defences for one of the defenders, and before any protestation had been put up for not enrolling, finds that the process was competently advocated, ad interim, by the expeding and signeting of the said letters, and may now be followed out to a final issue on the merits in this Court; and appoints parties to be ready to debate on the merits of the original action accordingly.”

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* “ Note.—The objection to the competency here is, that there was no depending process in this Court when the letters of advocation were expede, but only an inchoate proceeding, which had not sisted parties before a Judge, or given either to any such Judge, or to the defenders in the declarator, any control over the action, or taken it in any degree more out of the absolute disposal of the pursuers than if the summons bad been merely raised or executed—in either of which cases, it was assumed, that an advocation ob contingentiam, would have been incompetent—and that, as the case, in point of fact, has never gone farther, cannot now be forced on by the defenders, and is said, in point of fact, to have been abandoned by the pursuer, this advocation, which could only be supported on the ground of its contingency with some other process, must now be dismissed.

“There is some plausibility no doubt in these views—but the Lord Ordinary thinks they are fallacious, and that the fallacy lies partly in a misconception as to what is to be held as a depending action, to the effect of raising a contingency—and partly in an erroneous notion as to the stage of the proceeding at which the competency of an advocation brought on such a ground must be legally and permanently fixed.

“Now it may be conceded that the mere raising or execution of a summons will not make such a dependency, though they may warrant arrestment as on a dependence, or an order for perpetuating testimonies. But the calling of the came in Court, at the proper diet of the defender's compearance, is humbly thought to be a judicial procedure—by which, especially when the defender does compear and gives in defences, both parties are regularly convened as in a depending process. They have actually met, in short, within the precincts of the proper tribunal, and joined issue on the merits of the suit. By the forms of our Courts the defender may indued have no right as yet to force on the cause to an issue, or to make any motion towards a discussion of the merits. But it is not true that he is altogether without the power of affecting the procedure—nor has the pursuer any longer an arbitrary discretion as to the course which it shall pursue. By putting up protestation, the defender can now compel the pursuer either to go on with the action or to abandon it—very nearly to the same effect as when, in a more advanced stage of the proceeding, he insists upon any thing which reduces his opponent to the same dilemma. There are here, therefore, all the essentials of a depending process—both parties regularly convened in a competent Court—the grounds of action and defence judicially and responsibly produced—the pursuer entitled to take decree against the defender if in default—and the defender, in his turn, entitled to put the pursuer out of Court with a certain sum of expenses if he makes default by not enrolling on his requisition.

“It is humbly conceived, that, generally speaking, and to almost all effects, this should be enough to constitute a depending process. But it is quite true that processes may he held to be depending for certain purposes, and only inchoate, or in preparation, for others. And the true practical question here is, Whether, when things have come to this stage, there is not dependency enough to warrant an advocation, ob contingentiam of a connected process? Now, in considering this question, it is not only allowable, but necessary, to look to the principles of expediency and equity which are at the bottom of the subsisting regulations as to such advocations. Till lately, advocations were generally competent from interlocutory judgments—and they are still allowed when there is a contingency with any process already depending in the Supreme Court, on the plain ground, that it is unreasonable to expose the party to the expense of a double litigation and course of proceeding on the same matters. When it is asked, therefore, at what stage of the process in this Court the litigant should he entitled to bring up a relative process from the Court below, the natural and obvious answer would seem to be, whenever he is actually convened or put to any expense as a compearing party in the Court above, which is undoubtedly the case from the moment that he enters appearance, or lodges defences in that Court, in obedience to the call of the pursuer, and its standing regulations. From that moment he is actually suffering the oppression of a double course of procedure, and should therefore be entitled to relieve himself by reducing it to a single one.

“But if this be so, the only remaining enquiry is, At what stage of the advocation does he finally attain the benefit of the consolidation, and fix the Inferior Court process for ultimate adjudication here? The respondent seemed to maintain, that because the ultimate judgment, in all advocations, either advocated the cause or remitted to the interior Judge, any substantive objection to the competency of an advocation which might emerge before such ultimate judgment might be properly stated as a ground for dismissing the action; and, consequently, that if, at any time after presenting the bill, the original suit, on account of which another had been advocated ob contingentiam, had been put out of Court, and ceased to be in dependence, the advocation must necessarily fall—because it was thence-forward impossible to advocate the cause ob contingentiam, which they assume to be a necessary prelude to any finding on the merits in favour of the advocator.

“The Lord Ordinary, however, humbly conceives this to be a worse fallacy than the preceding—and takes it to be quite clear, that, after an advocation ob contingentiam is once fairly in this Court, it is of no consequence whatever that the original process, on account of which it had been brought here, should continue in dependence for a single day along with it. The contingency may often be such as not to require or to justify the conjunction of the processes: and even if conjoined, they roust always be separately disposed of by appropriate judgments, and one may be, and frequently is, finally adjudicated, long before the other is ripe for decision. All this is familiar in practice—and the fact not only disposes at once of the respondent's main ground of argument, but leads directly to the true criterion which that argument so strongly misrepresents. If it should be asked, then, when an advocation should be considered as fairly fixed as a process in this Court, the Lord Ordinary would have no difficulty in answering, by the expeding and signeting of the letters of advocation. The proceedings in the Bill-Chamber are but tentative—and the sist there granted is of course only ad interim: But when the letters pass the Signet, the cause is, by the uniform style of these letters, expressly advocated, by authority of the ‘Lords of Council and Session; and the Inferior Judge is interdicted from proceeding till the merits are finally adjudicated. From that moment, therefore, the litigant ceases to be a suitor in the Inferior Court—and is fully sisted as a party to a process in this Court. The merits, no doubt, remain to be discussed—and if the advocation be ob contingentiam, the question, whether there was any proper contingency, may form a point in the discussion. But this, and all other points, are to be discussed in a Court of Session process; and nothing that occurs subsequent to the constitution of that process by the signeting of the letters, can possibly exclude the discussion on the merits, or afford a ground for dismissing the advocation as incompetent.

“That the ultimate decree, if in favour of the advocator, must be prefaced by a final or second advocation of the cause, is truly of no importance—arid is indeed the necessary consequence of the whole process being a process of review. If the final judgment is against the advocator, the process is necessarily remitted to the Inferior Judge, from whom it thus appears that it ought never to have been removed—but the very necessity of a remit shows that it was de facto removed, ad interim—the decree not being the refusal of an application for advocation, but the remit of a process already advocated; and, when the judgment is in favour of the advocator, the form of advocation is merely a redintegration, and solemn affirmance, causa cognita, of that original advocation, for the purpose of enquiry, which was expressly and effectually made by the expede letters, and under which the enquiry became an enquiry into the merits, to be conducted in this Court, and its issue entered on its records.

“If there was a depending process, therefore, in this Court, when the letters of advocation were signeted, that advocation was competently brought; and the advocator is now entitled to follow it out to an issue, and to take judgment on the merits, whatever may have since happened to that depending process. But the action of declarator, in this instance, was called in Court in November last, and taken out to see, and defences regularly lodged by one at least of the defenders; and it was not till the 17th of December that the letters of advocation were signeted, while it was not till the 20th that protestation was put up by the compearing defender. The other defenders had obtained a prorogation of the time for lodging their defences, which have since been prepared and printed, and they have not proceeded by protestation; so that, as to them, and especially as the protestation by the other defender has never been extracted, it is apprehended that the action may still be enrolled. But however that may be, and even holding that it was finally put out of Court by the protestation put up on the 20th of December, it appears to the Lord Ordinary, that if it was a depending process when the letters were signeted on the 17th, the advocator had thereby obtained a persona standi, as in a competent advocation, of which he could no more be deprived by the subsequent ousting of the leading action in consequence of a protestation, than he could have been by the pursuer choosing to abandon it, in terms of the statute, after it had been for months in a course of litigation. In substance and effect, indeed, the cases are exactly parallel, since in both the pursuer goes out of Court without the consent of the defender, and with a right to come back again when he thinks proper—the only difference, in fact, being, that the defender gets his full expenses in one case, while he must be contented with the protestation money in the other. But, if the abandonment of an action, after litigation, will not extinguish an advocation regularly brought ob contingentiam while the litigation was current, so neither, it is humbly conceived, will this effect follow from submitting to protestation after the cause has been called and defences lodged by the defenders.”

Henderson reclaimed.

The Court, adhering in substance to the Lord Ordinary's interlocutor, pronounced as follows:—“In respect that the bill of advocation was presented and passed, and the letters of advocation ob contingentiam were expede and signeted after the summons of declarator had been called in Court, and returned with defences for one of the defenders, and before any protestation had been put up for not enrolling, repels the objection to the competency of the proceeding for obtaining an advocation of the inferior Court process, and appoints parties to be ready to debate on the merits of the original action accordingly, in terms of the finding of the interlocutor under review: Find the respondents entitled to the expenses of opposing this note; modify the same to the sum of six guineas, and decern for payment of the same, with the dues of extract.”