Scottish Court of Session Decisions

Lord President—The case in which this application has been presented was an action for enforcement of a contract of sale contained in missive letters—the subject being the estate of Murtly—and the pursuer concluded for specific implement, and alternatively for damages. The defender resisted the action upon two grounds—the first resting upon a construction of the personal contract of sale, and the second being that it was not a case in which specific implement was the appropriate remedy. We repelled both pleas and appointed the pursuer to lodge in process, within 14 days, the draft of a disposition by the defender of the estate of Murtly and others in favour of the pursuer, in fulfilment of the contract of sale constituted by the missives of sale, dated 19th and 20th September 1888, founded on by the pursuer.

The disposition so appointed to be prepared has been lodged and accordingly the case is now in such a position that the draft disposition may be adjusted. But there is a great deal to follow upon that, because when the deed has been granted and executed, it will be necessary to apply to the Court to have the sale confirmed under the Entail Amendment Act of 1853. There may then arise questions of very great importance, particularly as regards the manner in which the compensation to the next heir will fall to be adjusted, and its amount. There is therefore a good deal to be done before specific implement can be carried into effect.

In a question of this kind the Court is bound to consider the interests of both parties, and in the exercise of their discretion to say where the balance lies. It has been suggested that the whole merits of the case are substantially exhausted, but I can hardly assent to that. No doubt the case has been finally decided up to this point that the defender is bound by the missives to give specific implement of the contract therein contained. But there may be an appeal hereafter to the House of Lords in regard to other questions, and accordingly we must take into consideration the disadvantage to both parties if there should be more than one appeal. Mr Asher says that there is no ground for an appeal at a later stage. I cannot agree to that. There may be a very fair ground for appeal in the future, and, besides, the pursuer is quite entitled to suggest in a case like this that an appeal may be taken with the object of delay. There is therefore no protection or assurance against the prospect of there being three appeals. That is a very serious consideration.

The alternative of granting or refusing leave to appeal generally depends on a variety of considerations affecting the case in point. It has been a common thing to present an application for leave to appeal against a judgment sustaining a plea of relevancy—the object being to avoid the expense which would have attended an inquiry by proof or by jury trial if it should be held by the House of Lords that there was no relevant case. We have not seen many of these cases lately, but I can recall two of them in which petitions for leave to appeal to the House of Lords was refused, and in both there was ultimately a verdict for the defender. That seems to be a very good practical justification of the refusal of the application. I do not say that they are precisely applicable, but I cannot help thinking that the likelihood of there being more than one appeal is a sufficient reason for refusing this petition.

Lord Adam—There is a good deal of contentious matter still to be disposed of in this case. Your Lordship has said that there may quite well be a bona fide appeal at a future stage, and there was the case of General Macdonald in the Dunalastair disentail— M'Donalds v. M'Donald, March 12, 1880, 7 R. (H. of L.) 41—which was appealed to the House of Lords on the very question of the amount of compensation to be paid to the next heir. I do not think it is at all desirable that there should be a possibility of two appeals—and I think the respondent has a legitimate interest that the case should be disposed of here before an appeal is taken. I accordingly concur with your Lordship.

Lord Lee concurred.

Lord Mure and Lord Shand were absent.