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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macpheeson and Robertson v. Duncan and Reid [1876] ScotLR 14_143 (8 December 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0143.html Cite as: [1876] ScotLR 14_143, [1876] SLR 14_143 |
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Page: 143↓
Appellate Jurisdiction Act
Where a petition of appeal against the judgment of the Court on a Bill of Exceptions had been intimated to the opposite party, but Parliament not being assembled no order for service had been obtained— held that it was in the discretion of the Court to determine whether they should proceed to apply the verdict.
Observed that it is for the House of Lords to say whether they can issue orders for service of appeals while sitting for the purpose of hearing appeals, as authorised by the 8th section of the Appellate Jurisdiction Act.
This is the sequel of the case reported ante, p. 16, of date November 9,1876. The successful parties enrolled the case in the Single Bills, and moved that the verdict should be applied. It was stated at the bar that they had twice received notices, viz., on November 21st and December 1st, that it was the intention of the parties who presented the Bill of Exceptions—Mrs Macpherson and Andrew Ross Robertson—to appeal against the decision of the Court to the House of Lords within seven days after the date of the notices. The House of Lords was then sitting for the purpose of hearing
Page: 144↓
appeals, as it was empowered to do under the 8th section of the Appellate Jurisdiction Act (39 and 40 Vict. cap. 59). No petition of appeal had been presented. Mrs Macpherson and Andrew Ross Robertson objected to the verdict being applied, and argued —If they had obtained an order for service the Court could not have proceeded to a final judgment. Such an order could not be obtained unless Parliament was assembled. This new sitting of the House of Lords was not a meeting of Parliament, and it was impossible to obtain such an order. The expression ‘orders’ in sec. 8th means any incidental orders after the case is before the house. Consequently the rule is as before, that the petition of appeal must be presented and an order of service obtained within eight days after the next evening meeting of Parliament, and that it is within the discretion of the Court to proceed to final judgment or not as they may see fit. As the estate in dispute here is under the management of a judicial factor, there can be no harm in delay. To proceed to final judgment would seriously prejudice the interests of the unsuccessful party.
Authorities— National Exchange Co. v. Drew § Dick, 19th March 1858, 30 Jurist, p. 484; Tulloch v. Davidson, 15th July 1858, 30 Jurist, p. 747, and 20 Dunlop, p. 1319.
The successful party argued that these very cases showed that nothing but an order of service would stop proceedings. That might have been obtained, but had not, and therefore it was inexpedient to allow further delay.
At advising—
Counsel for Mrs Mackintosh— Nevay. Agent— A. Nivison, S.S.C.
Counsel for John Ross Duncan—Hall. Agent— W. J. Sands, W.S.
Counsel for Reid's Trustees— Blair. Agents— Philip, Laing, & Monro, W.S.
