Scottish Court of Session Decisions

This was a bill of suspension. The facts alleged by the complainer were as follows:—That in August 1882 the respondent had raised an action against him in the Sheriff Court of Midlothian for payment of £20, and interest, in which action the respondent alleged himself to be onerous endorsee or assignee of an I O U which the complainer had granted to a person named Neilson; that the complainer had averred, on the other hand, in defence, that the respondent had never obtained any valid assignation of the said I O U, that he had never given any value for it, and that any transaction between the alleged granter of the assignation and the respondent in regard to it was simulate and illusory.

The circumstances out of which the Sheriff Court action had arisen as detailed by the complainer were—The complainer had become, along with Neilson, cautioner in a cash-credit bond for Neilson's brother, who becoming bankrupt, the cautioners had to pay the balance on the bond. The complainer had then granted the I O U in question to Neilson, who

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had promised to the complainer when he signed the cash-credit bond that he would relieve him of all payments under it. In these circumstances the complainer maintained in the Sheriff Court that the respondent not being a bona fide holder of the I O U had no title to sue, and that he was therefore entitled to absolvitor.

The Sheriff-Substitute decided in favour of the respondent. The complainer appealed to the Sheriff, who dismissed the appeal. The complainer then lodged a minute of reference to the respondent's oath, which the Sheriff-Substitute refused to sustain. An appeal was taken to the Sheriff, who dismissed it on the ground that the appeal had not been timeously lodged. The complainer then petitioned the Sheriff specially to be allowed to refer the case to the respondent's oath, particularly the question of the resting-owing of the debt contained in the I O U. After this petition had been transmitted to the Sheriff, and was under his consideration, the respondent enrolled the case before the Sheriff-Substitute for approval of the Auditor's report on his account of expenses, when the Sheriff-Substitute approved of the report and decerned. The respondent then extracted the decree and charged the complainer upon it.

The complainer prayed for recal or suspension of (1) the interlocutor of the Sheriff-Substitute refusing to sustain the reference to oath; (2) the interlocutor of the Sheriff dismissing the complainer's appeal there against; (3) the interlocutor of the Sheriff-Substitute approving of the Auditor's report, and decerning for expenses, and (4) for suspension of the charge following upon the extract decree.

The complainer pleaded—“(1) The proceedings complained of being illegal and oppressive the prayer of the bill or note ought to be granted. (2) The said Sheriff and Sheriff-Substitute having most wrongously and unjustly refused to allow the complainer to refer his cause to the respondent's oath, he is entitled to have the prayer of his note granted with expenses. (3) The interlocutor of 12th January [being that approving of the Auditor's report] having been pronounced when the Sheriff-Substitute had no process before him, the same falls to be recalled. (4) The said extract decree having been issued while the case was still sub judice, the charge ought to be suspended, with expenses.”

Argued for the complainer—He came there not by way of review, but on the merits. The defence to the case was one which could be proved only by writ or oath of the pursuer. He was excluded from appeal to the Court of Session by reason of the value of the cause being under £25. The Court of Justiciary represented the Sovereign, and wherever an inferior Judge exceeded, or fell short of, the proper exercise of his judicial powers it had a general jurisdiction to set him right. He was entitled to come there at common law. Reference to oath was not a mode of proof, but a resource after all modes of proof were exhausted. He was compelled to take the form of suspension, because he had to suspend execution of the charge which had been given. The Sheriff having wrongfully deprived him of his constitutional right of referring to his adversary's oath, he was entitled to have the interlocutor doing so recalled by the only superior tribunal to which he was not expressly excluded from appealing.

Authorities— Dick v. Great North of Scotland Railway Company, 3 Irvine 617; Pattison v. Robertson, December 4, 1846, 9 D. 226, per Lord Moncreiff, p. 229; Davidson v. Russell, November 21, 1812, F.C.

Argued for the respondent—This was a purely civil cause, which was excluded from appeal under the Sheriff Courts Acts, not only to the Court of Session, but to the Circuit Court, “or any other court or tribunal whatever.” The civil jurisdiction of the High Court was entirely statutory, and was therefore to be strictly construed. The appellant must bring his case under some one of these statutory categories, or be excluded on the ground of no jurisdiction. This was an appeal from a Sheriff's judgment refusing proof. A bill of suspension was not a competent form of bringing such an interlocutor under review. The complainer could point out no limit to this alleged jurisdiction; it would practically make the High Court a court of appeal in all civil causes from the Sheriff Court.

Authorities—20 Geo. III. c. 43, sec. 34; 54 Geo. III. c. 67, sec. 5; 16 and 17 Vict. c. 80, sec. 22; Sandys v. Lowden, November 26, 1874, 3 Couper 43, 2 R. (Jus. Ca.) 7; Moncreiff on Review in Criminal Cases, p. 162; 39 and 40 Vict. c. 70, sec. 27; Dickson on Evidence, p. 916.

At advising—