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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Farquhar v. Aitken [1896] ScotLR 34_237 (18 December 1896) URL: http://www.bailii.org/scot/cases/ScotCS/1896/34SLR0237.html Cite as: [1896] ScotLR 34_237, [1896] SLR 34_237 |
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Page: 237↓
[Sheriff Court of Aberdeen.
Held that an appellant for jury trial in terms of sec. 40 of the Judicature Act 1825, may competently abandon his action by a minute in the form provided in sec. 10 of the Judicature Act and sec. 115 of the relative Act of Sederunt, 11th July 1828, for actions originating in the Court of Session.
Robert Farquhar, house painter, Aberdeen, raised an action in the Sheriff Court of Aberdeen concluding for £50 damages in respect of alleged slander. The Sheriff-Substitute ( Brown) allowed a proof, and the defender appealed under sec. 40 of the Judicature Act (6 Geo. IV. c. 120) to the First Division of the Court of Session for jury trial.
On 19th December 1896 the pursuer put in a minute of abandonment, in which, after narrating the various steps in the procedure of the case, he concluded—“And that in view of the denial by defender of the slander complained of, and in respect of the heavy expenses which would necessarily be incurred in having the case tried by a jury, the pursuer and respondent has resolved to abandon, and hereby abandons, the action in terms of the statute.”
The provision referred to is contained in section 10 of the Judicature Act, as regulated by the 115th section of A.S., 11th July 1828.
A question having arisen as to whether the minute should not be presented in the form provided by section 61 of A.S., 10th July 1839, which prescribes the appropriate form for abandonment in actions raised in the Sheriff Court,
Argued for pursuer—When an appeal for jury trial was presented under the Judicature Act, it could be dealt with by the Court as though originating in the Court of Session— Cochrane v. Ewing, July 20, 1883, 10 R. 1279; and accordingly abandonment in Court of Session form was competent. In Kermack v. Kermack, November 27, 1874, 2 R. 156, a minute of abandonment was held to be competently presented in Sheriff Court form, but that was an ordinary
Page: 238↓
appeal from the Sheriff Court, not one under the Judicature Act.
The Court sustained the minute of abandonment.
Counsel for the Pursuer— A. J. Morison. Agent— Alex. Morison, S.S.C.
