Scottish Court of Session Decisions

In this case the Court, on 25th November, allowed the pursuer an issue for the purpose of proving that the deed sought to be reduced was impetrated from the deceased Mr Thoms by fraud; but disallowed two other issues, by which it was proposed to prove that he executed the deed under essential error, and under the belief that he was not conveying by it the entailed estate of Rumgally.

The pursuer now moved for leave to appeal to the House of Lords the refusal of these two issues. He founded upon the fact that the Lord Ordinary thought the issues should have been granted, and also urged that the question involved was one of vital importance in the case. If the Court had not been unanimous in refusing the issues, the pursuer would have been entitled to appeal at this stage as a matter of right. The Act of Parliament prohibiting appeals of interlocutory judgments when the Court are unanimous was only passed to prevent frivolous appeals, and it could not be said that this was a proposal to appeal a frivolous point. There is no use of having a trial just now on the issue of fraud, and another trial possibly afterwards. The expense of one of these trials will be entirely saved by allowing an appeal at present. The defender can suffer no injury, because she is in full possession of the estate. The defender replied that she would suffer great hardship by the case being allowed to go to the House of Lords at this time. She and her agent, Mr Welch, were under a charge of fraud, which they were desirous to meet; and if leave to appeal was granted, this charge would be hanging over their heads untried for at least twelve months.

The Court refused to grant leave to appeal, and found the pursuer liable in the expense of the discussion. The matter was one of discretion; and in dealing with such questions the Court was in the habit of considering the advantages and disadvantages of granting or refusing leave. In this case, looking to the whole circumstances, and especially to the fact that the issue founded on fraud was still insisted in; it was right that the trial should proceed, and it was accordingly fixed for the March sittings.