Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1881/18SLR0247.html
Cite as: [1881] ScotLR 18_247, [1881] SLR 18_247

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SCOTTISH_SLR_Court_of_Session

Page: 247↓

Court of Session Inner House First Division.

[Dean of Guild, Greenock.

Saturday, January 15. 1881.

18 SLR 247

Crawfurd

v.

Miller.

Subject_1Process
Subject_2Appeal
Subject_3Competency
Subject_4Leave to Appeal — Dean of Guild — Act 50 Geo. III. cap. 112, sec. 36 — Act of Sederunt 12th November 1825, cap. 18, sec. 2.
Facts:

Held that the Act of Sederunt 12th November 1825, cap. 18, sec. 2, was merely regulative of the mode in which leave to appeal was to be obtained in the cases specified in Act 50 Geo. III. cap 112, sec. 36, and did not make it necessary to obtain leave in any other cases than those set forth in the Act.

Headnote:

This was an appeal from the Dean of Guild of the burgh of Greenock. The defender objected to the jurisdiction of the Dean of Guild, on the ground that the question was one relating to a matter of heritable right, which could properly be settled only by a declarator in the Court of Session. The Dean of Guild sustained his own jurisdiction and allowed a proof. Against this interlocutor the defender appealed. The respondent objected to the competency of the appeal, on the ground that the Dean of Guild had not granted leave to appeal, which the respondent contended was essential under the 2d section of the 18th chapter of the Act of Sederunt 12th November 1825, which provided as follows:—“The liberty of advocating interlocutory sentences to the Court of Session, in the cases allowed by the Act 50 Geo. III. cap. 112, sec. 36, must be obtained upon an application by petition to the Court, which must not contain any argument, but shall merely narrate the interlocutors to be advocated.”

The provision of the Act 50 Geo. III. cap. 112, sec. 36, above referred to was as follows:—“And be it enacted, That bills of advocation from the Sheriffs and other inferior Judges against interlocutory judgments shall be allowed only upon the following grounds—First, of incompetency, including defect of jurisdiction, personal objection to the judge, and privilege of party; Secondly, of contingency; Thirdly, of legal objection with respect to the mode of proof, or with respect to some change of possession, or to an interim decree for partial payment, provided that in the cases specified under this third head leave is given by the inferior Judge.”

The respondent contended that the effect of the Act of Sederunt was to make it necessary to obtain leave from the inferior Judge, not merely in the cases specified under the third head of the Act of Parliament, but in all cases. The appellant argued that this was not the true construction, and that if it was the Act of Sederunt was ultra vires.

Judgment:

At advising—

Lord President—On the question of the competency of this appeal I confess that I do not entertain any doubt. It is an appeal from a judgment of the Dean of Guild of the burgh of Greenock, and is brought under the 36th section of the Judicature Act (50 Geo. III. cap. 112) on the ground of defect of jurisdiction. The appellant says that the Dean of Guild cannot competently decide the questions raised in the record. Now, the 36th section of the Act provides that there may be advocation on any of the following grounds—[ reads section as above]. This appeal is not one of the cases specified under the third head, and therefore under the Act of Parliament the appellant required no leave from the inferior Judge to come here. But it is said that the Act of Sederunt of 12th Nov. 1825, passed under the authority of a totally different Act of Parliament—that of 6 Geo. IV. cap. 120—makes it necessary to obtain leave from the inferior Judge before presenting an appeal in any of the cases specified in the 36th section of the Act of Geo. III. The provision of the Act of Sederunt is in these terms—[ reads as above].

Now, if the effect of this provision is to take away the absolute right of appeal conferred by the 26th section of the Act of Geo. III. in regard to appeals on the ground of want of jurisdiction, it would certainly be a very serious interference with the right conferred by that statute. A judge who exceeds his jurisdiction is just the man to refuse to grant leave to appeal. An objection to the jurisdiction of the judge is just the right of all others which is most sacred. Therefore it would be very peculiar if the effect of the Act of Sederunt were to take away this right. Accordingly, I do not think that that is its meaning at all. I think the phrase “liberty of advocation,” though not a very happy one, is just equivalent to the “leave” spoken of in the 36th section of the Act of Parliament. If that is the true construction, then what the Act of Sederunt does is to prescribe the form in which leave is to be obtained in those cases in which it is required; and the Act of Sederunt would read—“leave to advocate must be obtained upon an application by petition to the Court, which must not contain any argument, but shall merely relate the interlocutors to be advocated.” That is the prescribed form in which leave is to be obtained. I ant quite satisfied that the Act of Sederunt was not intended to go any further.

Lord Mure and Lord Shand concurred.

Lord Deas was absent.

The Court recalled the objection to the competency of the appeal.

Counsel:

Counsel for Appellant— Kinnear— Asher. Agents— T. & R. B. Ranken, W.S.

Counsel for Respondent— Robertson— M'Kechnie. Agent— W. B. Glen, S.S.C.
1881