Scottish Court of Session Decisions

Lord Justice-Clerk—I do not think that we can sustain this objection to the Auditor's report. The defenders account of expenses is now objected to in a case which was allowed to go to judgment before this Court, and a decision was given by the Court in favour of the defender, with expenses, without any such objection being taken as the pursuer now makes, though he was represented by counsel as I understand—for I was not present. Now, the Auditor has made his report, and this objection is taken. The pursuer says the interlocutor remitting the account to the Auditor was an invalid interlocutor, an amendment having been put upon the record without any interlocutor authorising that to be done, and finally closing the record of new. I do not think that that is a relevant objection. The judgment was delivered by the Court and has become final, and it cannot be set aside now by any procedure such as this, which is an objection to the Auditor's report on a remit validly made. I do not think that Mr Hastie has shown any case of essential error in point of fact. It is only a statement, at most of an error in process. What effect it may have if the question is raised by another form of procedure I do not say, but it cannot have the effect of preventing us from considering this Auditor's report. I do not think we can sustain this objection.

Lord Young—I am of the same opinion. The question between the parties was originally one of jurisdiction. An action for damages for slander was brought against a gentleman who resided in Calcutta, all the matters referred to having taken place in Calcutta. It was sought to sue him here on the ground that this Court had jurisdiction over the defender, as he was the proprietor of heritable property in Scotland—a house in St Vincent St., Glasgow. The defender denied that he was proprietor of any such heritable property, and in order to make his denial specific he desired to have it written upon the record that the house belonged not to him but to his brother John Steel. Now, I doubt whether even the possession of a house in St Vincent St., Glasgow, would necessarily make a defender liable to our jurisdiction in an action of damages for slander uttered in Calcutta. But assuming that to be important, perhaps the clerk ought to have written an interlocutor allowing the amendment to be received; it would have been more regular. But these words were written upon the record without any interlocutor in regard to them. The question was argued and decided, and that decision cannot be altered now. We can do nothing now except pass to the consideration of the Auditor's report. I should only wish to say now, as I did during the course of Mr Hastie's statement, that I do not and never did entertain any doubt of the power of a Judge in the Outer House or of this Court to correct any error in fact in any interlocutor. If the name of the defender is inserted instead of that of the pursuer, or if decree is given for £1000 instead of £100, for example, all that can be remedied at once. It would be ridiculous to require an appeal to the House of Lords or an action of reduction. But this is not a matter of that kind at all. The utmost irregularity that it can be brought up to is that no interlocutor was written allowing the amendment to be received and closing the record again. It is always a question of degree, but we cannot listen to this objection at this stage.

Lord Craighill and Lord Rutherfurd Clark concurred.