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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> North British Railway Co. v. Bexfield [1871] ScotLR 9_17 (24 October 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0017.html
Cite as: [1871] SLR 9_17, [1871] ScotLR 9_17

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SCOTTISH_SLR_Court_of_Session

Page: 17↓

Court of Session Inner House First Division.

Tuesday, October 24. 1871.

9 SLR 17

North British Railway Company

v.

Bexfield.

Subject_1Process
Subject_2Appeal under § 40 of the Judicature Act
Subject_3No Appearance for Respondent.
Facts:

Action dismissed.

Headnote:

In this action of damages before the Sheriffcourt of Glasgow, certain important preliminary pleas were taken by the defenders the Railway Company, and repelled by the Sheriff, who thereupon,

Page: 18↓

on the merits, and before answer, allowed the parties a proof of their respective averments. An appeal to the First Division of the Court of Session, under the 40th section of the Judicature Act, and the 73d of the Court of Session Act, 1868, was lodged against this interlocutor. When the case came into Court no appearance was made for the respondent.

Solicitor-General ( Clark) and Balfour, for the appellants the Railway Company, moved the Court, that in respect of no appearance for the respondent, the appeal should be sustained, and the action dismissed, with expenses.

 Judgment:

Lord President—If this had been a final judgment of the Sheriff, the practice of the Court might be to sustain the appeal for want of appearance, but I am a little doubtful whether we can follow that course where the judgment is interlocutory merely. The respondent, though unwilling to be dragged into this Court, and probably into the House of Lords, might be very willing to follow out his action were the Sheriff's interlocutor sustained. I am not sure whether we can grant this motion without hearing you on the merits of your appeal. We will let the case stand over for a day or two to let you consider the matter, and see if you can afford us any farther information on the subject.

When the case was again called, Counsel stated that they had no farther information to give, and the Court, intimating that they had considered the matter, without calling on Counsel to support the appeal, pronounced an interlocutor to the following effect:—“On the motion of the appellant, and in respect of no appearance, sustain the appeal and dismiss the action, with expenses.”

Solicitors: Agents for the Appellants— Hill, Reid, & Drummond, W.S.

 1871

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0017.html