Scottish Court of Session Decisions

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Cite as: [1875] SLR 12_472, [1875] ScotLR 12_472

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SCOTTISH_SLR_Court_of_Session

Page: 472↓

Court of Session Inner House Second Division.

[Sheriff of Roxburgh.

Wednesday, May 26. 1875.

12 SLR 472

Duke of Roxburgh and Others

v.

Marquis of Lothian.

Subject_1Process
Subject_2Appeal
Subject_3Competency
Subject_416 and 17 Vict., c. 80, § 24 — 31 and 32 Vict., c. 100, § 53.
Facts:

In a petition for division of the area and sittings of a church, a question arose as to the rights of certain heritors whose lands had been disjoined from the parish under a previous decree of disjunction and erection quoad sacra. The Sheriff pronounced an interlocutor disposing of this question, but containing no finding as to expenses. On appeal to the Court of Session, an objection to the competency of the appeal, on the ground that the interlocutor did not dispose of the whole merits of the case, repelled.

Headnote:

This was an appeal from an interlocutor of the Sheriff of Roxburgh ( Pattison) in a petition at the instance of the Marquis of Lothian, as principal heritor of the parish of Jedburgh, and William Millar, solicitor, Jedburgh, clerk of the heritors of the said parish, for and as representing said heritors, craving division of the area of the new parish church of Jedburgh. This church had been erected in conformity with an agreement entered into in 1869 between the late Marquis of Lothian, the petitioner's predecessor, and the heritors of the parish, by which the Marquis undertook to be at the whole expense of building a new parish church on St Mary's, or Virgin Glebe of Jedburgh, in lieu of and exchange for the then existing Abbey Church, which was thereafter to become his property. Previously to this, in the year 1855, following on a decree of the Court of Teinds, a considerable portion of what was then the parish of Jedburgh had been disjoined quoad sacra from that parish, and, along with small portions of neighbouring parishes, had been erected into the parish church of Edgerston; and one of the questions which fell to be determined by the Sheriff under the petition was whether those heritors whose lands were so disjoined were entitled to a proportion of the area and sittings in the new church corresponding to the valuation of their whole land, or merely to that of the part, if any, of their lands which was not included in the quoad sacra parish.

The Sheriff, on 30th April 1875, issued an interlocutor in the cause, finding, inter alia, “that, in so far as regards the dividing and apportioning of the area and Beatings of the new parish church of Jedburgh recently erected, the heritors of the lands so disjoined and erected into the parish of Edgerston quoad sacra, are not to be considered as heritors of the parish of Jedburgh.” Other findings followed, and the interlocutor concluded without any award of expenses.

Several of the heritors appealed, and on the case being called in the Single Bills an objection to the competency of the appeal was taken.

Argued for the respondents—The appeal is incompetent, because the interlocutor is not one falling under sec. 24 of 16 and 17 Vic., cap. 80, nor under sec. 53 of 31 and 32 Vic., cap. 100. It cannot be interlocutor disposing of “the whole merits of the case,” because the question of expenses is entirely omitted.— Gordon v. Gray, 1 R. 1081.

No appearance by appellants in answer to objection.

At advising—

Judgment:

Lord President—The process before us is one of a peculiar kind, and was not in the mind of the Legislature when the statutes 16 and 17 Vic., cap. 80, and 31 and 32 Vic., cap. 100, were framed. Still, the rule as laid down in these statutes falls to be applied to the present case, and the 53d section of the Court of Session Act of 1868 must be the standing enactment on the subject. By that section a final judgment is one “which either by itself or taken along with a previous interlocutor or interlocutors, 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 raised in the cause,” &c. The petition before us plainly raises a competition

Page: 473↓

if it raises any controversy at all. Being a petition for the division of the area and sittings in a church, it might be carried through without dispute or question, but when dispute or question arises amongst the heritors or others concerned, the process becomes one of competition. The Sheriff's interlocutor disposes of the whole matters at issue between the parties, and by its terms the heritors within the quoad sacra parish are finally excluded from all interest, and put out of Court. The only difficulty which arises is owing to the fact that the Sheriff has not disposed of the question of expenses. But this matter of expenses cannot again be raised, and it has to all intents and purposes been dealt with already. It would be incompetent for the Sheriff to revert to it at any later stage, and an award must have been made in this interlocutor if at all, seeing that the exclusion of the parties interested is final.

Lord Deas—I think that a process of competition includes, in the sense of the statute of 1868 (31 and 32 Vic., cap. 100, sec. 53), a process of division of the area and sittings of a church. A process of division of a commonty may be thus comprehended, and it seems to me that such a process as the present also falls to be similarly included. I doubt whether the argument based on the omission of an award of expenses could hold even in the case of processes of multiplepoinding where an interlocutor with findings analogous to those in the present case has been issued. The Sheriff cannot return to give a decision on the matter of expenses.

Lords Ardmillan and Mure concurred.

Repel objection to the competency of the appeal, and to roll.

Solicitors: Agents for Appellants— Mackenzie, Innes, & Logan, W. S.

1875