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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clyne's Trustees v Clyne [1837] CS 16_191 (5 December 1837) URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0191.html Cite as: [1837] CS 16_191 |
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Page: 191↓
Subject_Process—Appeal—Interim Execution.—
A party having appealed against an interlocutor granting warrant for interim execution pending appeal, and obtained an order of service from the House of Lords, which was intimated to all concerned, and having thereafter brought a suspension of a charge under the warrant for execution, on the ground that it was illegal to enforce the decree after intimation of the order of service,—Bill of suspension refused.
The suspenders, Clyne's Trustees, having entered an appeal against the interlocutor pronounced in this case on 12th May, 1837 (ante, XV. 911), and against a subsequent interlocutor decerning for £191 of expenses of process, the charger, Clyne, presented a petition for interim execution as to these expenses, in terms of the 48 Geo. III. c. 151, which was allowed by the Court. An appeal was entered against the interlocutor granting warrant for execution, and an order of service obtained, which was intimated to the charger's agent and the clerks of Court.
A charge was thereafter given for the expenses, whereupon Clyne's trustees presented a bill of suspension, alleging, as their principal reason of suspension, that it was illegal to proceed to enforce a decree of this Court, after service of an order of the House of Lords on an appeal against such decree. 1 The other reasons of suspension had reference to the sufficiency of the caution which had been received by the clerk of Court.
Answers having been given in, the Lord Ordinary (Fullerton) refused the bill, with expenses, adding to his interlocutor the subjoined note. *
_________________ Footnote _________________
1 Lindsay, July 11, 1811 (F.C.)
* “The words of the statute † are conclusive against the suspenders. The judgment in the case of Lady Hadinton, Nov. 20, 1811, is exactly in point. The Court there were not called upon to find any thing as to the absolute incompetency of the appeal, though that opinion is ascribed to them in the report. But the judgment allowing the extract to be issued, clearly and necessarily implied their opinion on the point, which certainly was within their cognizance, and warranted by the terms of the statute, viz. that it was not competent, by appeal, to stay the execution of their former order.”
“Considering the terms of the judgment and order for interim execution here, and the admission of the bond of caution by the proper officer, the other reasons of suspension are obviously inadmissible.”
_________________ Footnote _________________
† The words here referred to are in the 18th clause of the 48 Geo. III. c. 151, viz. “That it shall not be competent, by appeal to the House of Lords, touching the regulations so made as to such interim-possession, execution, and payment of expenses or costs, to stop the execution of such regulations as shall have been so made as aforesaid respecting the same.”
Thereafter a second bill was presented, which was likewise refused by the Lord Ordinary (Meadowbank).
The trustees reclaimed, but
The Court unanimously adhered, finding additional expenses due.
Solicitors: D. Manson, S.S.C.— L. M. Macara, W.S.—Agents.
