Scottish Court of Session Decisions

This was an action raised in October 1887 in the Sheriff Court at Jedburgh in which John Wilson sued William Brakenridge and others, the executors of the deceased Charles Jardine, for payment of £51, 13s. 7d., being the price of various quantities of lime said to have been sold to Charles Jardine as per account annexed to the petition, the last item of which was under date June 1882.

The defenders, inter alia, pleaded “prescription.”

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The Sheriff-Substitute ( Spiers) on 27th October 1887 repelled this plea, but thedefender haying appealed, the Sheriff ( Jameson), on 10th January 1888 pronounced the following interlocutor:—“Recals the Sheriff-Substitute's interlocutor of 27th October 1887: Sustains the first plea-in-law for the defenders: Finds that the pursuer's proof must be limited to writ or oath of the defenders: Finds the pursuer liable to the defenders in the expenses of this appeal, modifies the same to the sum of two pounds, ten shillings sterling: Decerns and ordains the pursuer to make payment of the said sum to the defenders: Quoad ultra reserves all questions of expenses: Remits the cause to the Sheriff-Substitute for further procedure, and decerns.”

The pursuer appealed to the Court of Session.

On 15th March the case appeared in the Single Bills when the defenders objected to the competency of the appeal, on the ground that the interlocutor complained of was not appealable under either the Sheriff Courts Act of 1853 ( 16 and 17 Vict. cap. 80), or the Judicature Act 1825 ( 6 Geo. IV. cap. 120).

Argued for the respondents—I. The 24th section of the Sheriff Courts Act 1853 sets forth the only interlocutors which are appealable, viz., interlocutors (1) sisting process, (2) giving interim decree for payment, and (3) disposing of the whole merits of the cause. This interlocutor is not in any of these classes. Besides, there is no finding for expenses— Miller v. Brown, May 25, 1877, 4 B., 737. Compare the definition of a final judgment in the Court of Session Act 1868 ( 31 and 32 Vict. cap. 100), sec. 53. [ Lord President—The position of this case, however, is somewhat peculiar, for this interlocutor might come to have effect in a sense as a final judgment. The proof has been limited by the Sheriff to the writ or oath of the defender, who is also the respondent in the appeal, and if accordingly the pursuer—there being no writ—refers to the oath of the defender, then he is precluded absolutely from ever after submitting this interlocutor to review. Even when the final judgment in the case has been pronounced in the Sheriff Court, and an appeal has been quite competently brought against it, he could not do so. Did the Act mean to exclude an appeal in such circumstances? Appeal from an interlocutor restricting the proof in exactly the same way was refused as incompetent in Shirra v. Robertson, June 7, 1873, 11 Macph. 660. [ Lord President—The circumstances there were different. The appellant was the person to whose oath the reference was to be made.] But if appeal is incompetent to one party it could not be competent to the other. Besides the case of Robertson v. Earl of Dudley, July 13, 1875, 2 R. 935, is exactly in point, for there the Court refused to entertain an appeal at the defender's instance against that part of an interlocutor which restricted the proof to the writ or oath of the pursuer although it allowed it quoad the rest. [ Lord President—Perhaps the pursuer here might keep the point open if he declined to refer, and when the Sheriff thereupon gave final judgment against him he might appeal and bring that final judgment, and all prior interlocutors as well under review.] II. The appellant is not entitled to found on the provisions of the Judicature Act anent appeal for jury trial, for he allowed more than fifteen days to elapse from the date of the interlocutor before taking his appeal, and it is conclusively decided that such an appeal must be taken within fifteen days—Judicature Act 1825 ( 6, Geo. IV. c. 120), sec. 40; A.S., 11th May 1828; Duff v. Stewart, October 20, 1881, 9 R. 17; Kaimes v. Fleming, January 15, 1881, 8 R. 386. Moreover, though it is not necessary to raise the point, as the appeal is too late, this is not such an interlocutor as can be appealed under the Judicature Act— Primrose v. Mackenzie, November 18, 1859, 22 D. 1; Hamilton v. Henderson, June 10, 1857, 15 S. 1105; Shirra v. Robertson, supra.

Argued for the appellant—The appeal was competent as the interlocutor was appealable under the Judicature Act. No doubt it was an appeal taken after fifteen days had expired, but the Judicature Act did not provide that appeals had to be taken within fifteen days, and in this case the Court should not stretch the application of the Act of Sederunt of 1828. If the present appeal was disallowed, it was the only chance the pursuer had to obtain a finding as to the mode of proof, because if the case was once referred to the defenders' oath the pursuer would be barred from appealing, as thus, after the reference to oath had once been made, it would be impossible for him to get the more enlarged proof. Besides, there was no writ in the present case, and the reference would be limited to the defenders' oath, and they being trustees had no personal knowledge of the matter. [ Lord President—If this matter was referred to oath, you can always refuse to make a reference; judgment will then go against you on the merits, and the appeal that could be taken upon that interlocutor would raise the whole question between the parties.]

At advising—