ROBERT MAIN v ROBERT FERRIE (Court of Session)

‘19 th July 1838.—The Lord Ordinary having considered this bill, passes the bill, in terms of the Judicature Act, on juratory caution; and, in the circumstances of the case, finds that the juratory caution must be taken in this Court; and, for that purpose, grants commission to the Sheriff-substitute of Lanarkshire, at Glasgow.’

Answered —That, in terms of the correspondence, the objection had been waived; and it was not a question of competency, but one as to caution. Besides, the party ought to have reclaimed against the interlocutor passing the bill; that was competent; but as he had passed from that course, the advocator was led to believe that the intention to object had altogether been abandoned. In consequence of that, the respondent was to blame for any alleged incompetency.

Lord Gillies .—I think it was incompetent for Lord Moncreiff to pass the bill of advocation on the merits. It ought only to have been as to the question, (if that was there,) as to whether the party should be entitled to have the bill passed on juratory caution.

Maitland , for the advocator.—We were misled in the matter by the other party giving us notice that he did not intend to reclaim; and we were led to believe by the correspondence, that if there was any objection, it was to be waived, by allowing us to expede the letters.

Dean of Faculty .—The question of waiver was not pleaded to the Lord Ordinary; and his Lordship has not made that the subject of his report.