Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0438_2.html
Cite as: [1878] ScotLR 15_438_2, [1878] SLR 15_438_2

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SCOTTISH_SLR_Court_of_Session

Page: 438↓

Court of Session Inner House First Division.

[Sheriff of Caithness.

Thursday, March 14. 1878.

15 SLR 438_2

Ross

v.

Brims.

Subject_1Expenses
Subject_2Process
Subject_3Judicature Act, sec. 44, and Court of Session Act 1868, sec. 64.
Facts:

Where an objection to the competency of an appeal is not taken till the case is put out for hearing, the Court, although they dismiss the appeal as incompetent, will not give the respondent his expenses.

Headnote:

This was an appeal against a judgment ordaining a tenant to remove. When the case came up for hearing, the respondent submitted that by 6 Geo. IV. c. 120, sec. 44, followed by 31 and 32 Vict. c. 100 (Court of Session Act 1868), sec. 64, an appeal in such an action is incompetent, suspension being the proper remedy, and referred to the case of Fletcher v. Davidson, 3d March, 1874, 2 R. 71.

At advising—

Judgment:

Lord President (in sustaining the objection to the competency of the appeal)—It is the duty of a respondent to state any objection he may have to the competency of an appeal when the case appears in the Single Bills. I do not say that if he fails to do so that that precludes him from stating it afterwards. On the contrary, the Court will ex proprio motu take up any such objection. But it is a consequence of such failure that parties are put to unnecessary expense, and, as in the present case, counsel may be instructed to discuss the case on the merits. That expense is due to the respondent's omission, and therefore we shall give him no expenses.

Page: 439↓

The other Judges concurred.

The Court pronounced the following interlocutor:—

“Sustain the objection; dismiss the appeal as incompetent; but find no expenses due, in respect the objection was not stated when the case was in the Single Bills; and decern.”

Counsel:

Counsel for Pursuer (Respondent)— Strachan. Agents— Philip, Laing, & Monro, W.S.

Counsel for Defender (Appellant)— Black. Agents— Curror & Cowper, S.S.C.
1878

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