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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Muir v. Lamb [1872] ScotLR 9_568_1 (29 June 1872)
URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0568_1.html
Cite as: [1872] SLR 9_568_1, [1872] ScotLR 9_568_1
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SCOTTISH_SLR_Court_of_Session
Page: 568↓
Court of Session Inner House Second Division.
v.
Facts:
Where a party has appealed to the Court of Session against an interlocutor pronounced in the Sheriff-court, and moves for leave to withdraw the appeal after it has been received but before it is sent to the roll, the respondent must himself bear any expense that he has incurred in consequence of the appeal being taken.
Lamb having raised an action against Muir in the Sheriff-court of Glasgow, the latter appealed against an interlocutor appointing a proof for the 2d of July. Lamb's Glasgow agents informed their correspondents in Edinburgh of the appeal, and requested appearance to be entered. This was accordingly done. Before the fourteen days allowed to the appellant to print and box his appeal had elapsed, he lodged a note, on 29th June, craving for leave to withdraw his appeal.
J. M. Lees, for the respondent, moved that the interlocutor should contain a finding of expenses, to cover charges for correspondence, entering appearance, &c. It was settled in the case of a reclaiming note being allowed to be withdrawn that the interlocutor shall contain a finding of one guinea of expenses to cover expenses of correspondence; Kirkwood v. Knox, June 4, 1868; Perceval, May 27, 1868; Macleod v. Inglis, Nov. 30, 1870, 8 Scot. Law Rep., 156. And in the case of a reclaiming note there is no appearance to be entered. As a respondent is entitled to insist in an appeal, though the appellant wishes to withdraw it, he may have to consider whether or no he should do so. Precisely the same correspondence takes place whether an appellant withdraws his appeal with the Court's leave or abandons it, de facto, by failure to print; and in the latter case he is entitled to three guineas of expenses; A.S., March 10, 1870, iii. 5. In such a case the appeal does not appear in the Single Bills. But as that enactment might be intended to be of a penal character, the respondent only asked for the same finding as in the case of a reclaiming note being withdrawn by leave of the Court. Such a finding should be inserted, otherwise the respondent would have to bear charges that will be made against him, and which have necessarily been incurred through the appellant's actings.
Crichton, for the appellant, replied, that in the case of Kirkwood the reclaiming note had appeared in the Single Bills, whereas this appeal had not. There should be, therefore, no finding of expenses.
Page: 569↓
The Court refused to give the respondent any expenses.
Solicitors: Agents for Appellant— D. Crawford & J. Y. Guthrie, S.S.C.
Agents for Respondent— Ronald & Ritchie, S.S.C.