Scottish Court of Session Decisions

This was an action raised in the Sberiff-Court of Edinburgh by Mrs Grace Edmonstone or Shirra against Mr George B. Robertson, for payment of £100, being the amount contained in a promissory note granted by him to the pursuer.

The defender averred, inter alia, “It is believed that the £100 contained in the bill sued for was a sum lent by the pursuer at the request of the defender's brother, James Robertson, merchant Glasgow, but it was not paid to the defender. The interest credited in the summons was not paid by or on behalf of the defender, but by the said James Robertson. The defender believes the interest has been paid by the said James Robertson since the date of the promissory note, and that the pursuer has dealt with and treated the said James Robertson as the proper debtor therein, as he was well known to be so by the pursuer. No demand was ever made by the pursuer on the defender for payment of the debt sued for till the summons in this case was served. The defender believes and avers that no debt is due to the pursuer in respect of the bill founded on, the same having been paid or otherwise extinguished by arrangement between the pursuer and the said James Robertson. In reference to the counter statement, it is explained that the first marking of interest was written by the defender at James Robertson's request, by whom the interest is supposed to have been paid. It was not paid by the defender. The second marking of payment of interest, which has been deleted, is in the handwriting of the said James Robertson. The present action has not been raised with the consent or authority of the pursuer. It has been raised at the instigation of the said James Robertson, who is the real dominus litis.”

The Sheriff-Substitute ( Hallard) held the defender's statements to be irrelevant, and found for the pursuer.

The Sheriff ( Davidson) recalled the interlocutor, and allowed the defender a proof before answer of his averments by the writ or oath of the pursuer. She appealed, and the question before the Court was as to the competency of the appeal.

Argued for her, that the appeal was a competent one in terms of sec. 24 of the Sheriff Court Act 1853, and secs. 53, 54 of the Court of Session Act 1868, that the Sheriff's judgment was a final one within the meaning of those Acts, and one disposing of the whole cause, and that if his judgment were adhered to the pursuer would lose the advantage of any objection on the question of

Page: 446↓

relevancy. It was also suggested that the case might come under sec. 40 of the Judicature Act, 6 Geo. IV., cap. 120.

Argued for the defender, that the Sheriff's judgment must be a final one, not one necessarily leading to a final judgment; there must be decree. In any view, sec. 40 of the Judicature Act does not apply, as that only refers to proof prout de jure, not to proof by writ or oath; Hamilton v. Henderson, 10th June 1837, 15 S. 1105.

At advising—