Scottish Court of Session Decisions

Lord Justice-Clerk—I do not think it necessary to go into the grounds on which the Sheriff has proceeded. It seems anomalous that where exclusive jurisdiction is given to the Sheriff, which can only be exercised by canvassing and deciding on the merits of the votes tendered—when the Sheriff is bound to do that and when his judgment is final—this Court is to go into a discussion on points which cannot be fully decided or decided to any practical effect. The judgment in the case quoted to us seems to give countenance to the principle that while the judgment of the Sheriff is final when he declares a person to be elected trustee, the interlocutors which may be pronounced in the course of arriving at that decision are subject to review. If that point were open I have the clearest opinion upon it, but it seems not to be open. Here there is no substance at all in the appeal, and the party appealing has not suffered in any way. I am quite clear that we should not entertain this appeal. It is perhaps not incompetent, but it should be refused on the merits.

Lord Gifford—The statute has declared the Sheriff's judgment in declaring who is to be trustee to be final. That implies that all the ordinary steps for getting at that decision are also final. And though technically interlocutory judgments can be got at by this Court, I think that such steps to reaching the judgment which is final ought not to be reviewed. The real origin of this appeal is that the appellant wants us to decide on the validity of a vote given for him. Then he says the votes on the other side are so bad that we should disallow them, and as that would settle the whole competition we should decide it and remit to the Sheriff to carry out our judgment. There is hardly a case where under colour of appealing from an interlocutory judgment the whole matter might not be gone into if this were sustained.

Lord Young—To assume the competency of this appeal for the present, there is no substance in it—nothing to support it on the merits.

I agree with your Lordships that this Court cannot interfere with the incidental orders of the Sheriff in matters within his exclusive jurisdiction. This Court is always slow to interfere with the incidental orders of an inferior Judge towards the explication of this jurisdiction. I cannot avoid saying that in my opinion, irrespective of the authorities, this appeal is incompetent. It relates to the election of a trustee in a sequestration. Prior to 1856 the question of the election of a trustee going before the Sheriff at first came up here very frequently, and first in the Outer House and then in the Inner House there was a scrutiny of the votes for the election of a trustee, the result of which depends on the number and value of the votes. It was a great hardship that the Judges of this Court should have to decide on the question which of two respectable men should be trustee. It is no doubt often a question of importance, but it is a fair matter for the local Judge, and it was a pernicious wasting of the time of the parties to delay a matter so important to the ingathering and distribution of the estate. Therefore this statute was passed to prevent that evil, and sec. 71 enacts that “the judgment of the Sheriff declaring the person or persons elected to be trustee or trustees in succession shall be given with the least possible delay; and such judgment shall be final and in no case subject to review in any Court or in any manner whatever.” It was thought that this enactment would cure the evil, and the words would seem fitted to do so. This view, however, seems to have been taken, that although the result could only be obtained by the Sheriff examining and deciding upon the votes, his judgment on these matters, on the determination of which the ultimate determination necessarily follows, are all subject to the review of this Court, with the result that the whole difficulty remains. I cannot assent to that view. It is just declaring that the remedial statute is to be construed so as to defeat the remedy and leave the mischief as great as ever, and indeed I think with some aggravation. We have all great respect for authority. But this is a matter of procedure, and an error of procedure may be corrected after three such decisions as have been quoted. It is not a matter to which the maxim stare decisis applies. And so if it were necessary to determine the competency I should give my voice against the competency of this appeal.

Lord Justice-Clerk—I entirely concur in the observations of Lord Young, though I did not think it necessary to state my opinion on the point. It is a strange result that when there is final jurisdiction on the substance the Judge should not also be final in the means of explicating that jurisdiction.

Lord Ormidale was absent.