Scottish Court of Session Decisions

On 1st February 1888 the Sheriff-Substitute ( Grierson) pronounced an interlocutor in these terms:—“Sustains the defence to the extent of £26, and decerns against the defender for the balance of 11s. 3d. sterling: Finds the defender entitled to expenses, and fixes the same at the sum of sterling, for which decerns at the defender's instance against the pursuer.”

Against this judgment the pursuer appealed to the Sheriff ( Guthrie Smith), who on 9th May 1888 pronounced an interlocutor in these terms:—“… Repels the defences, and remits to the Sheriff-Substitute to decern in terms of the summons, with expenses, and decerns.”

The defender appealed to the Court of Session.

The respondent (pursuer) objected to the competency of the appeal, and founded on section 10 of the Debts Recovery (Scotland) Act, 1867, which provides that it shall not in any case be “competent to appeal until judgment has been pronounced by the sheriff finally disposing of the cause.” Here the Sheriff had remitted to the Sheriff-Substitute to decern in terms of the summons, so the interlocutor appealed against was not final. As the judgment at present stood it could not be extracted. In order to have made the judgment extractable the Sheriff ought not to have remitted to the Sheriff-Substitute, but should himself have decerned in terms of the conclusions of the summons, and the judgment would then have been extractable in accordance with the following provisions:—

The Debts Recovery Act, 1867, sec. 11, provides—“… The judgment of the sheriff shall, at the expiry of the period allowed for appeal hereinafter mentioned, and if not appealed from during the same, be extracted as nearly as may be in the same mode, and have the same force and effect, and be followed by the like execution and diligence, as a decree obtained under the 13th section of the first recited Act and relative schedule.”

The said first recited Act is the Small Debt Act of 1837 (1 Vict. cap. 41), sec. 13 of which provides—“The decree stating the amount of the expenses (if any) found due to any party … and containing warrant for arrestment, and for poinding and imprisonment, when competent, shall be annexed to the summons and complaint, and on the same paper with it, agreeably to the form in Schedule A annexed to this Act, or to the like effect.”

Argued for the appellant—As matter of fact the Sheriff had really disposed of the whole merits of the cause. The defences were repelled, and expenses were dealt with. Therefore the objection taken to the competency of the appeal could not be sustained. [ Lord President—But there is no decree for payment, which is what is wanted.] The interlocutor, however, of the Sheriff could easily be worked out; the whole defences being disposed of, all that remained in the interlocutor was merely executorial— Cathcart v. Sloss, Feb. 11, 1865, 3 Macph. 521; Malcolm v. M'Intyre, October 19, 1887, 5 R. 22.

The Court, after hearing parties in regard to the competency of the appeal, intimated that they desired to hear the case argued on the merits. After the case had been argued on the merits judgment was pronounced.

At advising—