Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> John Graham v. Henry Gordon [1874] ScotLR 11_623 (26 June 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0623.html
Cite as: [1874] ScotLR 11_623, [1874] SLR 11_623

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 623↓

Court of Session Inner House First Division.

Friday, June 26. 1874.

[Sheriff of Dumfriesshire

11 SLR 623

John Graham

v.

Henry Gordon.

Subject_1Process
Subject_2Appeal
Subject_316 and 17 Vict. cap. 80, sec. 24
Subject_431 and 32 Vict. cap. 100, sec. 53 — Final Interlocutor.
Facts:

Held that an interlocutor in the Sheriff-court finding, in a multiplepoinding, that there was double distress, repelling the defences, and reserving the question of expenses, was not one disposing of the whole merits of the cause, and was not consequently appealable.

Headnote:

This was an appeal from a judgment of the Sheriff-Substitute of Dumfriesshire. On the case appearing in the Single Bills, it was objected on the part of the respondent that the appeal was incompetent, on the ground that the interlocutor appealed against was not an interlocutor which came under the Sheriff-Court Act, 1853, sec. 24, and the Court of Session Act, 1868, sec. 53.

The Sheriff-Substitute's interlocutor was as follows:—

“ Dumfries, 29 th May 1874.—The Sheriff-Substitute having considered the debate on the closed record, Finds (1) that the question raised in the first head of defence involves the merits of the competing claims, and does not fall to be disposed of at this stage; and (2), That there is double distress in reference to the fund in medio: Therefore finds that the action has been competently raised repels the defences, and decerns, reserving the question of expenses; further appoints claims to be lodged within ten days.”

At advising—

Judgment:

Lord President—An objection has been taken to the competency of this appeal, which depends on the construction to be put upon sec. 24 of the Sheriff Court Act, 1853, 16 and 17 Vict., cap. 80, and sec. 53 of the Court of Session Act, 1868, 31 and 32 Vict., cap. 100. The former statute provides that “it shall be competent, in any cause exceeding the value of £25, to take to review of the Court of Session any interlocutor of a Sheriff sisting process, and any interlocutor giving interim decree for payment of money, and any interlocutor disposing of the whole merits of the cause, although no decision has been given as to expenses, or although the expenses, if such have been found due, have not been modified or decerned for.” The latter of these statutes provides, with regard to reclaiming notes from the Outer House, and appeals from the Sheriff Courts, “It shall be held that the whole cause has been decided in the Outer House when an interlocutor has been pronounced by the Lord Ordinary which either by itself or taken along with a previous interlocutor disposes of the whole subject-matter of the cause or of the competition between the parties in a process of competition, although judgment shall not have been pronounced upon all the questions of law or fact

Page: 624↓

raised in the cause, but it shall not prevent a cause from being held as so decided that expenses, if found due, have not been taxed, modified, or decerned for.” The “whole merits of the cause” in terms of the Sheriff Court Act is the same thing as “decision of the whole cause” in terms of the Court of Session Act. But it is quite plain that under sec. 53, the whole cause in the sense of the section may be decided more than once in a multiplepoinding, for in one multiplepoinding there may be more competitions than one, and so it is plain that in that process there may be more than one interlocutor disposing of the whole merits of the cause; but the question is, whether an interlocutor disposing of the whole question as to the fund in medio is an interlocutor disposing of the whole merits of the cause. It is maintained that the case of The North British Railway Co. v. Gledden, 26th June 1872, 10 Macph. 870, settles that question, and that when the fund has been ascertained, and the holder found liable in once and single payment, and the fund consigned, that is the whole case. But there is another question here, viz., whether the rule laid down in that case rules the present. What the Sheriff-Substitute has done by his interlocutor of May 29 is this, he finds “(1), that the question raised in the first head of defence involves the merits of the competing claims, and does not fall to be disposed of at this stage.” Now, in so far as that finding is concerned, it disposes of nothing at all; but he finds, “(2), that there is double distress in reference to the fund in medio; therefore finds that the action has been competently raised, repels the defences, and decerns, reserving the question of expenses.” Now all that is done here is to find that there is double distress, and to repel the defences; but nothing is said about the fund in medio; its amount is not ascertained, nor is there any order for consignation; there is no disposal of the question of expenses, but that is reserved. That clearly is not an interlocutor disposing of the whole merits of the cause; the holder of the fund is still in Court, and still holding it, and if there were nothing else in the case but the mere reservation of expenses, that would be conclusive, for it is necessary that they should be disposed of. So it seems to me that the case does not fall under the rule laid down in the North British Railway Co. v. Gledden, and this interlocutor has none of the characteristics of an interlocutor disposing of the whole merits of a cause.

The Court pronounced the following interlocutor:—

‘Sustain the objection to the competency of the appeal; dismiss the appeal, and decern; find the appellant liable in expenses; allow an account thereof to be given in, and remit the same when lodged to the Auditor to tax and report.”

Counsel:

Counsel for the Appellants— Kinnear. Agent— John Whitehead, S.S.C.

Counsel for the Respondents— Johnstone. Agent— John Galletly, S.S.C.
1874