Scottish Court of Session Decisions

I am therefore of opinion that the appeal is incompetent, and that it ought to be dismissed, with costs.

Lord Cranworth—My Lords, this matter lies in so very narrow a compass, that I do not think I should be justified in troubling your Lordships at any length after what has fallen from my noble and learned friend. This appeal is in my opinion clearly incompetent, because it is an appeal from an interlocutor not disposing of the whole merits of the cause. Upon that the question is founded. An appeal to the House is regulated by statute, and it can only be competent when it is an appeal against an interlocutor disposing of the whole merits of the case, or when the decision appealed against being of a temporary or interlocutory nature, the appeal has been sanctioned by the Court below, or there has been a division of opinion among the judges. Under neither of these categories does the present appeal range itself. That appears to me to be the whole question now before us. Whether the Court has taken the most proper course, will have to be decided if there should be an appeal upon the whole merits eventually. But the attempt to sustain this appeal, on the ground of its being an appeal against an excess of jurisdiction, or against an erroneous excess of jurisdiction, seems to me to be a confusion of terms. Of course the Court has no jurisdiction to decide anything that is contrary to law; but if it wrongly decides anything in the cause, that can be set right upon appeal only at the time when the Court has authorised that to be done.

Lord Colonsay—My Lords, it has not appeared to me, from almost the commencement of the argument, that there is any difficulty in this case. It appears to me that the provision of the Act of 1808 is quite conclusive upon the question. The only attempt to get out of this provision of the Act of 1808 has been by the endeavour to assimilate this to the case of an inferior court having exceeded its jurisdiction, and being now to be corrected by a Supreme Court in regard to such excess of jurisdiction. But this case is not of that character. There can be no doubt at all that the Court of Session had jurisdiction to deal with this case. But the argument is, that in a step of the procedure they have not followed the statutory regulation, which has been referred to; or, in other words, the argument is, that in every case in which there can be found in any statute anything of a directing nature as to the course which is to be followed in the preparation of a cause, if the Court of Session commits an error in the application of that direction, an appeal is competent, although the order of the Court may not deal with any part of the merits of the cause, or be the result of divided opinion, and there be no leave given by the Court. That is an extravagant proposition; it is contrary to the interpretation that has been put upon the Act for nearly sixty years. There is no precedent for it, and I can see no principle for it. I am therefore clearly of opinion that the appeal is incompetent.

With regard to the step itself that was taken, it may not be necessary at this stage to say anything, but I cannot refrain from expressing my opinion that the procedure which was adopted by the Court was not in contravention of any statute. I think it was a competent procedure. What may be the benefit of it hereafter remains to be seen, but it was not out of the ordinary course of procedure, nor does it appear to me to interfere in any way with any direction in any of the statutes. The provisions contained in the earlier statutes, as to sending the case at once to the Jury Court, were provisions to enable the Jury Court, not the Court of Session, to proceed with the preparation of the cause as well as to try the cause. But those very statutes contained provisions that if questions arose, either of law or of relevancy, which the parties denied to be disposed of, the case was to be sent back to the Court of Session in order that that Court might deal with those matters, and might send the case again for trial by a jury. But these things have been swept away, because now there is no Jury Court; but the procedure of preparing the cause throughout remains with the Court of Session, and it is not imperative on them to send a cause before a jury until they see whether or not there is a relevant and proper case presented to them for consideration. Now, when I look at this record, I see that there may be great difficulty in regard to that matter. There may be difficulty in regard even to the relevancy in the strict sense of the word; but in regard to a wider and perhaps more inaccurate use of the word “relevancy,”—I mean as to the sufficiency and perspicuity of the statements of the parties—there was great occasion, I think, for something to aid the Court in dealing with the case, and the course taken by the Court, of having the books examined by an accountant, so as to enable them to read all these volumes through the eyes of an accountant selected by themselves, and whose report, when it is made, the parties will have an opportunity of observing upon, was, I think, a very prudent step to take in reference to such a case as this. But that is not necessary to the decision of the point now before us, which really turns upon the competency of the appeal, and I have no doubt that the appeal is incompetent.

Lord Advocate—My Lords, there are two appeals before your Lordships’ House; of course your Lordships’ judgment will apply to both?

Lord Chancellor—Yes.