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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Davidson v. Davidson [1891] ScotLR 28_688 (9 June 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0688.html
Cite as: [1891] SLR 28_688, [1891] ScotLR 28_688
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SCOTTISH_SLR_Court_of_Session
Page: 688↓
Court of Session Inner House Second Division.
[Sheriff of Aberdeen.
v.
Facts:
In an action in the Sheriff Court at Aberdeen the person called as defender lived in the Peterhead district of Aberdeen. In 1870 the Secretary of State, under the provisions of the above-mentioned Act, had prescribed that all cases, civil or criminal, arising in the Peterhead district should be tried within that district, and also prescribed the court days to be held there for the purpose of the despatch of business. The Sheriff-Clerk refused to grant a warrant to cite the defender to the Aberdeen Court, and when a motion was made to the Sheriff-Substitute to that effect he also refused to grant the warrant.
An appeal therefrom dismissed as incompetent.
The Sheriff Court Amendment (Scotland) Act 1870 (33 and 34 Vict. cap. 86), sec. 13, provides—“It shall be lawful to Her Majesty by one of her Principal Secretaries of State to prescribe from time to time the number of courts to be held by the several sheriffs of Scotland who shall be appointed after the passing of this Act, and the times and places for holding such courts.”
Upon 10th June 1885 the Right Honourable Sir William V. Harcourt, one of Her Majesty's Principal Secretaries of State, in pursuance of the powers contained in the above section, prescribed that from and after that date the following arrangements should take effect with respect to the Sheriff Courts in the Peterhead district of the county of Aberdeen—“(1) All cases, civil and criminal, arising in the district of the county of Aberdeen, hitherto known as the Peterhead district, shall be called, tried, and proceeded with within the said district. (2) A court shall be held at Peterhead once a week, on a stated day, during three weeks out of every four, according to such regulations as may be prescribed by the Sheriff, for the despatch of all business, civil and criminal, competent in the Sheriff Court.”
In May 1891 George Davidson, residing in Baltic Street, Aberdeen, brought an action against Ann Davidson, residing at Gallahill, St Fergus, in the county of Aberdeen, to have her ordained to produce an account of her intromissions with the estate of a deceased brother, in whose executry estate the pursuer claimed a share.
As the defender was resident in the Peterhead district, the Sheriff-Clerk at Aberdeen refused to grant the pursuer a warrant to cite the defender to the Court at Aberdeen.
The pursuer made application to the Sheriff, and upon 26th May 1891 the Sheriff-Substitute ( Grierson) issued this interlocutor:—“The Sheriff-Substitute having heard the pursuer's agent in his motion for a warrant to cite the defender to the Court at Aberdeen in respect of the order of the Secretary of State of date 10th June 1885, refuses the same.”
The pursuer appealed, and argued — It was competent to appeal this interlocutor, and have it remitted back to the Sheriff Court with instructions to cite the defender to attend the Court at Aberdeen. It had been held that where the Sheriff had dismissed an action because it was not brought in a certain form it was competent to advocate the cause to the Court of Session— Whyte v. Gerrard, November 30, 1861,
Page: 689↓
24 D. 102. The case had virtually been dismissed here, and the Sheriff had not applied his mind to the subject, but had practically disposed of the whole case. At advising—
The Court dismissed the appeal as incompetent.
Counsel for the Appellant— Jameson— Burnet. Agents— Henry & Scott, W.S.