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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackay v. Thurso Harbour Trustees [1895] ScotLR 33_202 (11 December 1895) URL: http://www.bailii.org/scot/cases/ScotCS/1895/33SLR0202.html Cite as: [1895] ScotLR 33_202, [1895] SLR 33_202 |
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Page: 202↓
[Sheriff of Inverness.
By section 10 of the Judicature Act it is provided that a pursuer has the right to abandon an action “on paying full expenses to the defender.”
Held that where the defender in an action does not consent to absolvitor being pronounced, a minute of abandonment by the pursuer, which does not bear to he under the statute, and in reference to which there is no tender of expenses, is incompetent.
In an action at the instance of John Mackay, contractor, and Roderick Scott, trustee on his sequestrated estate, against the Thurso River Harbour Trustees, the pursuers reclaimed against the judgment of the Lord Ordinary. Subsequently Mr Scott lodged a minute in which he stated that “the minuter had now ascertained that he was unable to verify the cause of action as set out in the summons, and that the estate under his charge would not yield funds to pay the costs of litigation, that he had been recommended by the creditors to abandon further proceedings, and craved leave for himself to abandon the action.” No tender of expenses was made in the minute or by the minuter's counsel.
Section 10 of the Judicature Act provides that a pursuer has the power “to a bandon the cause on paying full expenses or costs to the defender, and to bring a new action if otherwise competent.”
The respondents argued that it was incompetent to abandon the action except on payment of expenses, in accordance with the provisions of the Judicature Act and relative Act of Sederunt—A. of S., July 16, 1828, sec. 115.
At advising—
Lord President—If this minute of abandonment had been presented in accordance with the Judicature Act, our course would would have been clear; the defenders' account of expenses is remitted to the auditor, and, on the taxed expenses being paid the action is then dismissed. But this minute does not purport to be under the statute, and it has been admitted at the bar that it was of distinct intention that it was not presented under the statute. Now, we have no mode of dealing with such a minute, and, accordingly, I am of opinion that we must refuse it. The pursuer will then be in a position to consider what steps he should take next.
Page: 203↓
Counsel for the Minuter— A. Jameson— Chree. Agents— J. K. & W. P. Lindsay, W.S.
Counsel for the Respondents— Guthrie. Agents— J. C. Brodie & Sons, W.S.