Scottish Court of Session Decisions

The case is reported ante ut supra.

On 14th December 1906 the North British Rail way Company brought an action against the Budhill Coal and Sandstone Company concluding, inter alia, for declarator that the defenders had no right to remove the sandstone from certain lands belonging to the pursuers. On 22nd June 1907 the Lord Ordinary ( Dundas) dismissed the action and found the defenders entitled to expenses. The pursuers reclaimed to the Second Division, who on 24th November 1908 adhered and found the defenders entitled to additional expenses.

After the defenders' account of expenses had been remitted to the Auditor, but prior to approval of his report, the pursuers lodged a petition of appeal to the House of Lords. On 4th February 1909 the defenders moved for approval of the Auditor's report and for decree for the taxed amount of expenses in name of the agents disbursers. At that date, owing to the House of Lords being in vacation, the petition of appeal had not been presented, nor had any order for service been pronounced. The pursuers opposed the motion.

Argued for pursuers—As the case was under appeal to the House of Lords, decree for expenses should not be granted at present. In any event such decree should only be granted on caution being found for repetition in the event of the appeal being successful.

Argued for defenders—As the case was not removed from the Court of Session, until the petition of appeal was presented and an order for service pronounced in the House of Lords, execution could not be stayed, and the defenders were entitled to the decree craved. The mere lodging of the petition did not remove the case from the Court of Session— Edinburgh Northern Tramways Company v. Mann, October 16, 1891, 19 R. 24, 29 S.L.R. 51.