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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ashbury Railway Carriage Co. v. North British Railway Co [1867] ScotLR 4_161 (4 July 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0161.html
Cite as: [1867] ScotLR 4_161, [1867] SLR 4_161

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SCOTTISH_SLR_Court_of_Session

Page: 161↓

Court of Session Outer House

Thursday, July 4 1867.

Lord President Lord Curriehill Lord Ardmillan Lord Deas

4 SLR 161

Ashbury Railway Carriage Co.

v.

North British Railway Co.

Subject_1Issues
Subject_2Adjustment
Subject_3Report to Inner-House.

Facts:

Held competent for a Lord Ordinary to report a case on issues verbally to the Inner House at the first meeting for adjustment.

Headnote:

At first meeting for the adjustment of issues in this case, the parties not agreeing on the terms of the issue, the Lord Ordinary ( Jerviswoode), on the motion of the pursuers, reported the case verbally to the Court. The object of the pursuers was to get issue adjusted so as to go to trial at the next Jury sittings, this being the last day for giving notice of trial. The defenders objected, on the ground that by the invariable practice of the 1st seventeen Years the statute (13 and 14 Vict., c. 36, § 38) had been so construed that a case could only be reported on issues after a second meeting for adjustment had been held. A first meeting was appointed. That was for the purpose of hearing the views of parties and of the Lord Ordinary. If parties did not agree, then a second meeting was

Page: 162↓

appointed; and if at that meeting issues were not adjusted, the case would then be reported. What was now proposed was to compress all that into one meeting. The defenders were not prepared at present to discuss the issue proposed.

Mackenzie and Shand for pursuers.

Young and Keir for defenders.

 Judgment:

Lord President— It seems to me that the only point for us to determine, in the first place, is the competency of this proceeding. As to the question of expediency, we shall be glad to hear parties afterwards, if it turns out that there is a difficulty in the case. As to the competency I have no doubt. The practice may have been for all that time to hold first one meeting and then another. But unless that be indispensable under the Act, it is impossible for us to hold that the course now adopted by the Lord Ordinary is incompetent; and if it be not incompetent, we must hear parties on this report. The clause contemplates this, that when the pursuer has lodged the issue he proposes, or the pursuer and defender respectively have lodged the issues they propose, there is to be a meeting with the Lord Ordinary at chamber, for adjusting the issue or issues; and when that takes place, it is contemplated, first, that the issues may then be adjusted; but if they are not adjusted, the course of the Lord Ordinary is alternative, either he may appoint a second meeting or he may report. If he appoint a second meeting, another attempt is to be made at that meeting to adjust the issues, but if that fail the Lord Ordinary is to report. But that a report is as competent at the first meeting as at the second is quite plain.

Lord Curriehill took the same view. As to the practice of which the defender spoke, no doubt in all those cases the Lord Ordinary has seen cause to appoint a second meeting. Here he had not seen cause to do so, but had reported the case at once.

Lord Ardmillan also held that there was no incompetency in the present procedure. His recollection of the Outer-House procedure certainly was that, in the very great majority of cases, the first meeting was rather for the purpose of allowing each party to hear what the other party and the Lord Ordinary had to say than for settling the issue. But on the question of competency there was no doubt.

Lord Deas declined.

After hearing the pursuer on the issue proposed by them, the Court mere of opinion that the issue would require further consideration before final adjustment, and the case was adjourned till next week. It was held that the case was now in the Inner House without any further report by the Lord Ordinary.

 Counsel:

Agents for Pursuers— Mackenzie & Kermack, W.S.

Agent for Defenders— Stodart Macdonald, S.S.C.

 1867

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0161.html