Scottish Court of Session Decisions

Subject_1Process
Subject_2Appeal
Subject_3Removing
Subject_46 Geo. IV. c 120. sec. 44.
Facts:

Section 44 of the Act 6 Geo. IV. c. 120, enacts that … “When any judgment shall be pronounced by an inferior Court ordaining a tenant to remove from the possession of lands or houses, the tenant shall not be entitled to apply as above by bill of advocation to be passed at once, but only by means of suspension as hereinafter regulated.” The process of advocation was abolished and appeal substituted by the Court of Session Act 1868 (31 and 32 Vict. c. 100), secs. 64 and 65.

An action was brought by George Clark for warrant to eject David Wilkie Clarke and James Clarke from certain premises purchased by the pursuer from the trustee on the cessioned estate of David Wilkie Clarke. The defenders resisted the action on the ground that the “pretended sale” to the pursuer had been irregular, and in breach of the Cessio Acts and relative Acts of Sederunt, and was null and void. The Sheriff-Substitute repelled the defences and granted warrant of ejection, and on appeal the Sheriff adhered.

The defenders having appealed to the Court of Session, objection was taken to the competency of the appeal on the ground that the only mode of review was by suspension. The Court held the appeal competent, in respect that the appellants were not “tenants.”