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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gordon v Fraser [1838] CS 16_1380 (11 July 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1380.html Cite as: [1838] CS 16_1380 |
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Page: 1380↓
Et e contra.
Subject_Process—Appeal—Reference.—
An action was submitted to judicial reference one of the parties afterwards raised a reduction of the reference; the proceedings in the reference still went on, and a final award was pronounced; about two years afterwards decree-absolvitor was pronounced in the reduction, which was taken to appeal; a motion was thereafter made to have the authority of the Court interponed, in the original action, to the award of the judicial referee:—Motion refused, in respect of the appeal of the relative action of reduction.
Various actions in dependence between Colonel Gordon of Cluny, and James John Fraser, W. S., were judicially referred to Messrs Guthrie Wright and Patrick Cockburn, in 1831. In 1834, Fraser raised an action against Gordon and the referees, for having it found and declared that the referees had acted corruptly and unlawfully, and concluding that they should be interdicted from further procedure, and that the reference should be set aside. The proceedings in the reference went on notwithstanding this action, a bill of suspension by Fraser being refused on July 5, 1834. 1 A final award was pronounced by the referees in March, 1836. In the reduction, an issue was adjusted for trial by jury; a verdict was entered for the defenders on May 26, 1838, 2 and the defenders were assoilzied on June 7, 1838. Thereafter Colonel Gordon moved the Lord Ordinary, before whom the actions had depended which were judicially referred, to interpone his authority to the award of the referees. But, in the interim, Fraser had taken the judgment in the reduction to appeal, and now objected that it was incompetent for the Lord Ordinary to interpone his authority to awards which were pronounced in a reference that was itself under reduction. This had been practically admitted by Colonel Gordon, as he never moved to have the authority of the Court interponed to the award, until after the reduction was disposed of in this Court. But the same reason existed as forcibly till the issue of the appeal; and the present motion was truly tantamount to an application for interim execution pending appeal, but not made in the process which was under appeal, nor under the usual sanction of finding caution to repeat in the event of a reversal. Colonel Gordon answered, that the effect of a reduction was not suspensive, but purely rescissory. Accordingly, he had been found entitled to go on with the reference, notwithstanding the dependence of the reduction. It was only in consistency with that judgment, that he should be found now entitled to have the authority of the Court interponed to the
_________________ Footnote _________________
1 Ante, XII. 887.
2 Supra, p. 1049.
award which had been pronounced. And that was the only motion in which he at present insisted.
The Lord Ordinary reported the point on minutes.
The Court accordingly refused the motion of Colonel Gordon, with expenses.
Solicitors: J. J. Fraser, W. S.— J. Bennett, W. S.—Agents.
