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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ross v. Mackenzie [1889] ScotLR 26_600 (26 June 1889)
URL: http://www.bailii.org/scot/cases/ScotCS/1889/26SLR0600.html
Cite as: [1889] ScotLR 26_600, [1889] SLR 26_600
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SCOTTISH_SLR_Court_of_Session
Page: 600↓
Court of Session Inner House First Division.
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v.
Facts:
The Judicature Act 1825, sec. 10, provides, inter alia—“.. The pursuer has it in his power to abandon the cause on paying full expenses or costs to the defender, and to bring a new action if otherwise competent.” …
The Act of Sederunt, 16th February 1841, sec. 46, provides—“If it shall be made to appear to the Court that a party has abandoned his suit, … the Court shall proceed therein as in cases in which parties are held as confessed.” …
The pursuer of an action lodged a minute in process abandoning “the cause in terms of the statute,” but he failed from poverty to pay the taxed amount of the defender's account of expenses. On the motion of the defender, and on the pursuer's consent, the Court assoilzied the defender from the conclusions of the action.
In an action of damages by Hugh Ross, Balchaggan, Ross-shire, against John Mackenzie, innkeeper, Milltown, Ross-shire, an issue was settled by Lord Wellwood on 25th January 1889, and the case was set down for trial at the jury sittings in March 1889. Shortly before the date of the trial the pursuer lodged a minute in the following terms:—“ Forsyth, for the pursuer, hereby abandons the cause in terms of the statute.” Thereafter the Court, on the motion of the defender, allowed the defender to lodge an account of his expenses, and remitted the account to the Auditor for taxation. It was not stated that the pursuer had failed to pay the defender's expenses as taxed, and that his agent had advised the defender's agent by letter that the pursuer was unable to pay the expenses, and did not object to decree passing therefor, and to the defender being assoilzied. The defender moved for the amount of the expenses, and for absolvitor.
Reference was made to the Judicature Act (6 Geo. IV. cap. 120), sec. 10; the Court of Session Act 1868, sec. 39; the Act of Sederunt, 16th February 1841; and to Lawson v. Low, July 1, 1845, 7 D. 960.
The Court assoilzied the defender from the conclusions of the action.
Counsel for the Pursuer— Forsyth. Agent— David Barclay, Solicitor.
Counsel for the Defender— Wilson. Agent— Robert Cunningham, S.S.C.