United Kingdom House of Lords Decisions

On 12th March 1920, in an action at the instance of the North British Railway Company against the Magistrates of Edinburgh, the First Division, on a reclaiming note, found and declared that the defenders were bound in all time coming to relieve the pursuers and their successors in the subjects mentioned in the summons from all burgh assessments and other burdens therein specified, and quoad ultra remitted the cause to the Lord Ordinary to dispose of the petitory conclusions. On 19th March 1920 the defenders applied for and obtained leave to appeal to the House of Lords. No appeal having been presented, the pursuers enrolled the cause before the Lord Ordinary and on 1st June 1920 (after notice to the defenders, who did not appear) moved for and obtained decree with expenses. Thereafter the pursuers' account was taxed in presence of the agents for both parties, and the sum decerned for, and the pursuers' expenses as taxed, were duly paid by the defenders.

On 24th February 1921 the defenders presented a petition and appeal against the interlocutor of 12th March 1920. The pursuers presented a petition craving that the appeal should be dismissed as incompetent “because the interlocutor of the First Division of 12th March 1920 being an interlocutory judgment is not now appealable, inasmuch as a subsequent interlocutor of 1st June 1920 pronounced in the cause by one of the Lords Ordinary… disposing of the remaining merits of the case and of expenses was not reclaimed against in terms of the Act 6 Geo. IV, cap. 120, section 18, and has in consequence now become the final interlocutor disposing of the whole merits of the cause, and is no longer subject to review by the Court of Session in Scotland or by your Lordships' House.”

At the hearing before the Appeal Committee the agents for the appellants argued that the appeal was competent, and cited Downe, Bell, & Mitchell v. Pitcairn and Others, 1829, 3 W. & S. 472.

The agent for the respondents maintained that where, as here, the interlocutory judgment of the First Division had been followed by a subsequent interlocutor in the Outer House exhausting the cause the appeal was incompetent. The case of Downe, relied on by the appellants, was distinguishable, as the Journals of the House (vol lvi, 1824, p. 119, see also p. 461) showed that at the time the appeal was presented, viz., 29th March 1824, the last interlocutor in the case was that of the Second Division, dated 11th March 1824, and that the subsequent interlocutor of Lord Mackenzie, dated 22nd May 1824, and that of the Inner House adhering thereto, dated 22nd June 1824, were both pronounced after the appeal had been presented. In Downe's case therefore the appeal had not been taken after but before the final decision of the cause. The head-note was misleading.