Montgomerie & Company, Limited.( Ante, November 17, 1899, 37 S.L.R. 83, and 2 F. 107; March 8, 1902, 39 S.L.R. 517, and 4 F. 771; and December 18, 1903, 41 SLR 137.)
Subject_Process — Appeal to House of Lords — Appeal Sustained — Interlocutors of Court of Session Dealing with Several Questions — Only One Point Argued in House of Lords.
In an action for interdict against interfering with a certain piece of land various questions of title to the land, title to sue, and possession were involved. The defenders appealed to the House of Lords against all the interlocutors of the Courts below, but at the hearing of the appeal argued only one of the questions in the case. The appeal was sustained.
Held, by the Appeal Committee, that the defenders were not entitled to an order for the reversal generally of the interlocutors appealed against, but only to an order for the reversal of the interlocutors so far as they related to the question argued before the House.
This was a petition to vary the draft judgment of the House of Lords in the appeal by Montgomerie & Company, Limited, in the action raised against them at the instance of John George Wallace-James, reported ante December 18, 1903, 41 SLR 137.
The action concluded, inter alia, for interdict against the appellants interfering with a certain piece of land alleged to belong to the burgh of Haddington.
On 7th June 1901 the Lord Ordinary ( Kincairney) pronounced an interlocutor finding (1) that the piece of ground referred to had from time immemorial been in the use and possession of the Provost, Magistrates, and Town Councillors of the burgh of Haddington, and (2) that it had been appropriated from time immemorial for the use and enjoyment of the burgesses and inhabitants.
On 8th March 1902 the First Division affirmed this interlocutor.
The appellants appealed against the interlocutor of the First Division and against the whole of the Lord Ordinary’s interlocutor as well as against certain earlier interlocutors, dated 23rd November 1898, 18th July 1899, and 17th November 1899, in the Outer and Inner House, but at the hearing of the appeal they argued only the point that the piece of ground in question had not been appropriated from time immemorial for the use and enjoyment of the burgesses and inhabitants of Haddington.
On 18th December 1903 the House of Lords sustained the appeal.
After the judgment of the House of Lords had been given, but before the draft order was passed, the respondent lodged a petition setting forth that the appellants were not entitled to a reversal of the whole of the interlocutors appealed from, as they had not argued all the points determined therein; and that in fact they had only argued the one point, viz., that the ground in question had not been dedicated from time immemorial to public use. In his petition the respondent accordingly craved the House to limit the order of reversal to that one point, in respect that a general reversal of all the interlocutors which dealt with other points than the point of appropriation to public use would warrant the inference that the important points not argued had been considered by the House.
The petition came before the Appeal Committee.
Lord Chancellor—The question of title to the land in question was raised, but when the learned counsel came to argue the case he said he would not trouble the House with anything about title. That being so, he allowed that part of the interlocutor to stand.
The Order of the House was in the following terms:—“Ordered and adjudged that the said interlocutor of the Lords of Session in Scotland of the 17th day of November 1899, in so far as it finds the appellants liable in the expenses of the reclaiming note, and also the said interlocutor of the Lord Ordinary there of the 7th day of June 1901, in so far as it finds that the piece of ground referred to in the action has been appropriated from time immemorial for the use and enjoyment of the burgesses and inhabitants, and also the said interlocutor of the Lords of Session there of the 8th day of March 1902, so far as it adheres to the said finding of the said Lord Ordinary, and also in so far as it finds the respondent entitled to expenses, be, and the same are hereby reversed; and it is further ordered and adjudged that the note of suspension and interdict presented by the respondent (complainer below) be, and the same is hereby refused; and it is further ordered that the respondent do pay, or cause to be paid, to the said appellants the costs of the action in the Court of Session; and it is further ordered that the respondent do pay,
or cause to be paid, to the said appellants the costs incurred in respect of the said appeal to this House.”Counsel:
Agents for the Appellants— John Kennedy, W.S., Westminster; T. S. Paterson, W.S., Edinburgh.
Agents for the Respondent— A. & W. Beveridge, Westminster; Patrick & James, S.S.C., Edinburgh.