Lord Justice-Clerk —It is, in my opinion, most desirable that everything should be done to discourage parties bringing ill-considered appeals to the Court of Session under the Sheriff Courts (Scotland) Act 1907. Those who are conducting proceedings in the Court below should not appeal to the Court of Session unless they are prepared to go through with their appeal, and if they are in doubt as to whether they have reasonable grounds on which to appeal they would be well advised to seek advice from those who, from their experience in the Court of Session, would be able to direct them. It is much to be deprecated that appeals should be brought and then dropped, such proceedings causing inconvenience to the Court, and indeed to all concerned.
The present case clearly falls under rule 96 of Schedule I of the Sheriff Courts (Scotland) Act 1907—“After an appeal has been noted, the appellant shall not be entitled to abandon it unless of consent of all parties or by leave of the Appellate Court.” Now we have been asked for leave to abandon, and there is no reason why we should not comply with the appellant's request. We accordingly grant him leave, the only question being on what terms as regards the payment of expenses.
Mr Macmillan, for the respondents, asked us to remit the question to the Auditor. Mr Fleming, for the appellant, founding on section 4 (4) of the Act of Sederunt of 5th January 1908 and section 3 (5) of the Act of Sederunt of 10th March 1870, contended that his liability was limited to £3, 3s.
I am of opinion that in the case before us our discretion in the matter of awarding expenses is in no way curtailed by any statutory provision or provision by Act of Sederunt, and if we thought it desirable we might remit the account to the Auditor. The matter, however, is a small one. I do not consider that it is a case for a minimum award such as the pursuer pleads for. I think we shall best dispose of it by modifying the expenses due by the appellant to the respondents at five guineas.
Lord Low —I agree with your Lordship.
Lord Ardwall —I concur. I wish to say that the note we are dealing with is a note for leave to abandon an appeal under Rule 96 of the First Schedule of the Sheriff Courts Act 1907, and that we are not expressing any opinion on the cases which are provided for in the first portion of section
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Lord Dundas concurred.
The Court allowed the appellant to abandon his appeal on payment of five guineas of modified expenses.
Counsel for Appellant— D. P. Fleming. Agents— Clark & Macdonald, S.S.C.
Counsel for Respondents— Macmillan. Agents— Morton, Smart, Macdonald, & Prosser, W.S.