Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0143.html
Cite as: [1876] SLR 14_143, [1876] ScotLR 14_143

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SCOTTISH_SLR_Court_of_Session

Page: 143↓

Court of Session Inner House First Division.

Friday, December 8.

14 SLR 143

Macpheeson and Robertson

v.

Duncan and Reid.

Subject_1Process
Subject_2Appeal
Subject_3Competency.

Appellate Jurisdiction Act
Subject_4(39 and 40 Vict. cap. 59), sec. 8.
Facts:

Where a petition of appeal against the judgment of the Court on a Bill of Exceptions had been intimated to the opposite party, but Parliament not being assembled no order for service had been obtained— held that it was in the discretion of the Court to determine whether they should proceed to apply the verdict.

Observed that it is for the House of Lords to say whether they can issue orders for service of appeals while sitting for the purpose of hearing appeals, as authorised by the 8th section of the Appellate Jurisdiction Act.

Headnote:

This is the sequel of the case reported ante, p. 16, of date November 9,1876. The successful parties enrolled the case in the Single Bills, and moved that the verdict should be applied. It was stated at the bar that they had twice received notices, viz., on November 21st and December 1st, that it was the intention of the parties who presented the Bill of Exceptions—Mrs Macpherson and Andrew Ross Robertson—to appeal against the decision of the Court to the House of Lords within seven days after the date of the notices. The House of Lords was then sitting for the purpose of hearing
Page: 144↓
appeals, as it was empowered to do under the 8th section of the Appellate Jurisdiction Act (39 and 40 Vict. cap. 59). No petition of appeal had been presented.

Mrs Macpherson and Andrew Ross Robertson objected to the verdict being applied, and argued —If they had obtained an order for service the Court could not have proceeded to a final judgment. Such an order could not be obtained unless Parliament was assembled. This new sitting of the House of Lords was not a meeting of Parliament, and it was impossible to obtain such an order. The expression ‘orders’ in sec. 8th means any incidental orders after the case is before the house. Consequently the rule is as before, that the petition of appeal must be presented and an order of service obtained within eight days after the next evening meeting of Parliament, and that it is within the discretion of the Court to proceed to final judgment or not as they may see fit. As the estate in dispute here is under the management of a judicial factor, there can be no harm in delay. To proceed to final judgment would seriously prejudice the interests of the unsuccessful party.

Authorities— National Exchange Co. v. Drew § Dick, 19th March 1858, 30 Jurist, p. 484; Tulloch v. Davidson, 15th July 1858, 30 Jurist, p. 747, and 20 Dunlop, p. 1319.

The successful party argued that these very cases showed that nothing but an order of service would stop proceedings. That might have been obtained, but had not, and therefore it was inexpedient to allow further delay.

At advising—

Judgment:

Lord President—There may be a very important question under the 8th section of the Appellate Jurisdiction Act of 1876—whether an appeal against a Bill of Exceptions, when judgment is pronounced during the sitting of the House of Lords, as provided in that section, must not be presented within fourteen days? But that is a question for the House of Lords, and I am sure your Lordships will be unwilling to pronounce any opinion on that question. But putting out of view the new provisions as to the sitting of the Appellate Court—judgment having been given on a Bill of Exceptions it is competent just as it was before to present a petition of appeal and obtain an order of service within fourteen days if Parliament is sitting, or if Parliament is not sitting then within eight days after the next ensuing meeting of Parliament. If during the time that Parliament is not sitting the petition is presented, and the party who has presented it gives intimation of it to the successful party, I should hesitate to pronounce a final judgment, because the effect of a reversal of our judgment on the Bill of Exceptions would be to send the case to a new trial. There is no incompetency in doing so, for nothing but service of the petition of appeal can stop procedure in this Court; but there is certainly a discretion with us, and looking to the circumstances of the case, and especially to the fact that the estate is in the hands of a judicial factor, I think it is expedient not to apply the verdict at present.

Lord Deas— I think it is better not to go into the points of which your Lordship has spoken. Generally speaking, it is the right of a successful party to go on to final judgment, and cause must be shown why he should not; and I have considerable difficulty in interfering with the successful party in this case. But in the circumstances I am not prepared to differ from your Lordship.

Lord Mure—This is a delicate matter, but when I consider that there is a judicial factor in possession of the estate, and that therefore the successful party will take no prejudice by our refusal to apply the verdict, I am prepared to agree with your Lordship.

Lord Shand— I do not doubt that it is within the discretion of this Court to say whether the case shall proceed to final judgment. It has, on the other hand, been required to be the rule that nothing but an order of service can effectually stop proceedings here. But while that is the rule, I agree that in the special circumstances we should not apply the verdict.

Counsel:

Counsel for Mrs Mackintosh— Nevay. Agent— A. Nivison, S.S.C.

Counsel for John Ross Duncan—Hall. Agent— W. J. Sands, W.S.

Counsel for Reid's Trustees— Blair. Agents— Philip, Laing, & Monro, W.S.
1876