Scottish Court of Session Decisions

This is a question as to the competency of an advocation ob contingentiam of an interlocutor of the Sheriff of Lanarkshire in an action of sequestration for rent, which was reported by the Lord Ordinary on the bills. The objections were (1) that the interlocutor is a final judgment, and advocation ob contingentiam was excluded by the decision in the case of Hamilton, 11th February 1848 ( 10 D. 678; (2) that there is no contingency; and (3) that advocation ob contingentiam is excluded by section 24 of the Sheriff Court Act, 16 and 17 Vict. c. 80, which excludes review of all interlocutors of the Sheriff “not being an interlocutor sisting process or giving interim decree for payment of money, or disposing of the whole merits of the cause;” and at the same time repeals the provisions of the Act 5th George III. c. 112, and of 6th George IV. c. 120, in so far as inconsistent with the above enactment. In the case of Harrington v. Richardson, 20th January 1854 ( 16 D. 368), it was held that this provision of the Sheriff Court Act did not exclude an advocation with a view to jury trial under section 40 of the Judicature Act.

The action to which the present was said to be contingent is one of reduction of certain decrees pronounced by the Sheriff in regard to previous rents of the same subjects, and the same defences which were stated in these actions were applicable to the one now proposed to be advocated.

The Court, after hearing counsel for the advocator, refused the advocation as incompetent.