Scottish Court of Session Decisions

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Cite as: [1884] ScotLR 22_12, [1884] SLR 22_12

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SCOTTISH_SLR_Court_of_Session

Page: 12↓

Court of Session Inner House Second Division.

Sheriff of Forfarshire.

Thursday, October 17. 1884.

22 SLR 12

Macfarlane

v.

Thomson.

(See ante, vol. xxi. p. 577.)

Subject_1Process
Subject_2Sheriff
Subject_3Appeal to Court of Session
Subject_4Extracted Decree — Court of Session Act 1868 (31 and 32 Vict. c. 100), sec. 68 — Competency.
Facts:

In a Sheriff Court action the defender was assoilzied with expenses by the Sheriff Substitute. On appeal the Sheriff adhered, and thereafter the Sheriff-Substitute gave decree for the taxed amount of the defender's expenses. The defender extracted only the decree for expenses, and the pursuer paid part of them. Thereafter the pursuer appealed to the Court of Session against the interlocutor of the Sheriff. The defender objected to the competency of the appeal. Held that the interlocutor of the Sheriff disposing of the merits of the cause not having been extracted the appeal was competent.

Headnote:

The Court of Session Act 1868 provides by sec. 68 that at expiration of the period of twenty days after the date of a judgment in a Sheriff Court the Clerk of the Court may, if no appeal have been taken, give out the extract, “it being competent however to take such appeal at any time within the period of six months from the date of final judgment in the cause unless the judgment has previously been extracted or implemented.

David Macfarlane, boiler maker, raised an action in the Sheriff Court of Forfarshire at Dundee against William B. Thomson, engineer, for compensation for bodily injuries sustained by him while working in the defender's employment.

On 20th July 1883 the Sheriff-Substitute ( Cheyne) pronounced an interlocutor containing certain findings in fact, assoilzieing the defender from the conclusions of the action, and finding him entitled to expenses.

On 6th October the Sheriff ( Trayner) adhered with additional expenses.

On 16th October the Sheriff-Substitute decerned against the pursuer for payment of the taxed amount of the defender's account of expenses.

On 31st October the defender extracted the last-mentioned decree, viz., that for expenses. He did not extract that of the Sheriff.

This decree for expenses was in part implemented by the pursuer by payment to the defender of a portion of the expenses decerned for.

On 13th March 1884 the pursuer lodged an appeal to the Court of Session against the interlocutor of the Sheriff of 6th October.

At the calling of the case on the Short Roll the defenders objected to the competency of the appeal and argued that the appeal was incompetent because it was lodged after final judgment in the cause had been both extracted and implemented. He had no interest to extract anything but the decree for expenses. That decree was included in, and could not be separated from, that on the merits, and extract of it was equivalent to extract of the decree of absolvitor.

Pursuer replied—The defender could not bar
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the right of appeal by merely extracting a decree for expenses which was quite distinct from the decree on the merits. The only way he could have put an end to the case was by extracting the decree of absolvitor.

At advising—

Judgment:

Lord Justice-Clerk—In such a case as this, which is under a statute by which there is an exclusion in a special case of a right of appeal otherwise competent, one rather leans towards the exercise of the right of appeal than towards its exclusion. Here my own impression is that the extract of the decree of expenses was not equivalent to extract of the decree of absolvitor, although in this case it is of consequence to observe that the decree of absolvitor was followed by decree for expenses in favour of the defender, for there are many cases where the award of expenses may be inconsistent with the judgment of absolvitor. But the ground of my judgment here is that the interlocutor disposing of the merits of the case was not extracted, and therefore that the appeal is not excluded by the statute.

Lord Craighill concurred.

Lord Rutherfurd Clark—I am also inclined to read the statute as your Lordship has done. The statute declares in very express terms that the right of appeal is competent for six months, provided that it has not before the lapse of that time been extracted or implemented. There is here a decree of absolvitor. Has it been extracted or implemented? Now, I think the meaning of the statute is that a party shall not be cut out of his appeal unless the right of appeal is expressly excluded by the statute. But it is said that the appeal is barred here because the decree of absolvitor was followed by a decerniture for expenses, and that has been extracted. I do not think that extracting that decree is equivalent to extracting the decree of absolvitor, and therefore I think that the appeal is competent.

The Court repelled the objection and sustained the competency of the appeal.

Counsel:

Counsel for Pursuer (Appellant)— D.-F. Macdonald, Q.C.— Gardner. Agent— A. Trevelyan Sturrock, S.S.C.

Counsel for Defender (Respondent)— Darling— Law. Agents— Rhind, Lindsay, & Wallace, W.S.
1884