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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Arthur v. Boucher [1887] ScotLR 25_138 (8 December 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/25SLR0138.html
Cite as: [1887] SLR 25_138, [1887] ScotLR 25_138
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SCOTTISH_SLR_Court_of_Session
Page: 138↓
Court of Session Inner House First Division.
Sheriff of Lanarkshire.
v.
Facts:
Held incompetent, in a case where the Sheriff-Substitute had pronounced an interlocutor allowing a proof, to remove the process to the Court of Session under the 40th section of the Judicature Act while the interlocutor of the Sheriff-Substitute was under appeal to the Sheriff.
In an action of damages in the Sheriff Court at Glasgow at the instance of Arthur M'Arthur against James Boucher, the Sheriff-Substitute ( Erskine Murray) repelled the preliminary
Page: 139↓
pleas stated by the defender, and allowed a proof. The defender appealed to the Sheriff.
The pursuer afterwards appealed to the Court of Session for jury trial under section 40 of the Judicature Act 1825, the claim being for more than £40.
On the case appearing in the Single Bills the respondent objected to the competency of the appeal, and argued—The case was before the Sheriff. This was a proper case for appeal to the Sheriff under the Sheriff Courts Act 1876 (39 and 40 Vict. c. 70), sec. 27. The appeal was in proper form—sec. 28. The effect of the appeal was to submit the whole case to the Sheriff—sec. 29. There was no standing interlocutor allowing a proof.
The respondent argued—The defender was not debarred from arguing a question of relevancy on the preliminary pleas which he had stated— Virtue v. Police Commissioners of Alloa, December 12, 1873, 1 R. 291. It was more convenient that the preliminary pleas should be considered here rather than that they should be sent back to the Sheriff.
But the condition attached to that form of procedure is, that there should be an interlocutor in the Sheriff Court allowing a proof, and the question now is, whether we have in this case an interlocutor allowing a proof? The answer is, that there is no standing interlocutor of the sort in the Sheriff Court, because the interlocutor of the Sheriff-Substitute is under appeal to the Sheriff, and may cease to be an interlocutor allowing proof after the Sheriff's interlocutor is pronounced. And so the very ground of the application under the 40th section of the Judicature Act is removed by the appeal to the Sheriff, and I think the objection now stated to the present appeal is well founded.
The Court sustained the objection and dismissed the appeal.
Counsel for the Pursuer and Appellant— Baxter. Agent— William Black, S.S.C.
Counsel for the Defender and Respondent— Dickson. Agents— Macpherson & Mackay, W.S.