Scottish Court of Session Decisions

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Cite as: [1877] ScotLR 14_590, [1877] SLR 14_590

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SCOTTISH_SLR_Court_of_Session

Page: 590↓

Court of Session Inner House First Division.

Wednesday, June 27.

14 SLR 590

( Ante, p. 570.)

Gardner Beresford's Trustees..

Subject_1Appeals to the House of Lords
Subject_2Vase where Leave granted conditionally.
Subject_3

Facts:

Following upon a verdict of a jury reducing a lease upon the ground of fraud, decree of removing was pronounced. The defender, the lessee, had averred possession upon two titles, but his plea to that effect was repelled by the interlocutor in which the Court applied the verdict. This was a unanimous interlocutory judgment, there being still a conclusion for accounting undisposed of. On the defender applying for leave to appeal to the House of Lords, it was granted on condition that he should find caution for violent profits, and present the appeal within a limited time.

Headnote:

This was an application in terms of section 15 of the Act 48 Geo. III. cap. 151, for leave to appeal a unanimous interlocutory judgment of the Court to the House of Lords.

The action, which was at the instance of Beresford's Trustees, concluded (1) for reduction of a lease; (2) for decree of removing following upon reduction; and (3) for an accounting of intromissions with the subject. The defender, the present petitioner, had, inter alia, stated this plea—“The pursuers are not entitled to decree of removing as concluded for, in respect that, in the event of the lease under reduction being set aside, the defender will be entitled to obtain a lease from the pursuers in terms of the agreement of 7th June 1873, or otherwise in terms of the agreement set forth in the condescendence.”

It had been found by verdict of a jury that the pursuers had been induced to execute the lease by fraudulent representations, to which the defender was a consenting party. The Court afterwards applied the verdict, and reduced, decerned, and declared in terms of the reductive conclusions of the summons. They further repelled the defender's plea [ quoted supra], and decerned in terms of the conclusions for removing, and reported to the Lord Ordinary to proceed with the conclusions for accounting, &c.

At advising—M

Judgment:

Lord President —An application of this, kind is addressed to the discretion of the Court, and it is sometimes very difficult to say whether it is more expedient to grant or to refuse leave to appeal. I am very much inclined in most cases where the cause is not exhausted to lean to the side of refusing to grant the leave unless the interference of the Court is clearly expedient. It is apt to cause an interruption to the final disposal of the action. But here there is a great peculiarity, because, as Mr Kinnear very pointedly observed, if the leave now asked is not granted, there never can be an appeal, and all that a judgment of the House of Lords could give would be a restitution of the lessee's possession, not under the lease by which he at present possesses, but under another and a different lease. I do not think that the pursuers have any great interest to resist the application, provided they are secured against any loss consequent on continuance of possession. If caution is found for violent profits they will be amply secured, because violent profits embrace not only all profits which the pursuer could make if they were in possession, but also all damages which the subject may receive at the hands of the defenders. One cannot conceive any other loss which can arise to the pursuers if the application is granted.

Besides, the interruption in the progress of the case is not of so much consequence here as in many cases. The accounting may perhaps occupy, some time, and is not a thing requiring any great hurry in the settlement. The defender, so far as we know, is quite solvent, and therefore the delay which will occur cannot create any prejudice to the pursuers. I therefore think we may grant leave to appeal if the defender will lodge in process a bond of caution for violent profits; and also under the distinct understanding that he will present his appeal to the House of Lords within a certain short time. Probably eight days should be the limit, as Parliament is now sitting.

Lord Deas—The specialty on which Mr Balfour founds against leave being granted to appeal at this stage, is the fact that the lease which has been reduced was induced by fraud, and that that was the ground of our judgment. But the question

Page: 591↓

to be raised in the appeal is, whether our judgment was right? The defender says the title has been reduced on the ground of fraud, but that he had two titles, and possessed on both of them, and ought not to be turned out until it has been finally decided that he is not entitled to remain in possession upon that footing. We were unanimous in our judgment, but that is the reason why leave is required to appeal. There have been unanimous judgments where we have been held to be wrong. There are considerations of expediency both for and against the granting the application. But if the conditions which your Lordship has named are complied with, the specialties urged by the pursuers as objections will be removed, and I think we may grant leave to appeal.

Lords Mure and Shand concurred.

The following interlocutor was pronounced:— “The Lords having heard the counsel for the parties, in respect of caution for violent profits having now been found, in terms of bond, No. 27 of process, Grant leave to the petitioner James Gardner to appeal to the House of Lords against the interlocutor of this Court of 13th June 1877, as prayed for, on condition of the petition of appeal being presented and an order of service obtained thereon within eight days from this date.”

Counsel:

Counsel for Petitioner (Defender)— Kinnear— Lorimer. Agents— Adamson & Gulland, W.S.

Counsel for Respondents (Pursuers)— Balfour —J. P. B. Robertson. Agents— Tods, Murray, & Jamieson, W. S.
1877