Scottish Court of Session Decisions

In an action of multiplepoinding raised by the Governors of the Strichen Endowments in the Sheriff Court at Peterhead, the Sheriff-Substitute ( Grierson) on 1st August 1891 pronounced this interlocutor:—“Having considered the cause, together with the productions, Finds, under reference to the annexed note, that the pursuers and real raisers are entitled to be ranked on the free fund in medio, to the extent of the said free fund, in terms of their claim: Quoad ultra continues the cause.”

Mrs Diverall and certain other unsuccessful claimants appealed to the Sheriff, and on 13th October a joint minute was lodged for all the claimants to the effect that they “concurred in stating that they were agreed, in order to curtail the expense of litigation, and enable the parties to obtain the opinion of the Inner House, to crave, and hereby crave, the Sheriff-Principal to dismiss the appeal, and to find the whole of the claimants entitled to their expenses, including the expense of competition, out of the fund in medio.”

On 15th October the Sheriff ( ) pronounced this interlocutor:—“Having considered the joint minute, dismisses the appeals, and finds the whole of the claimants entitled to their expenses, including the expenses of competition, out of the fund in medio: Allows accounts to be lodged, and remits the same for taxation, and decerns.”

By the 53rd section of the Court of Session Act 1868 it is provided as follows—“It shall be held that the whole cause has been decided in the Outer House when an interlocutor has been pronounced by the Lord Ordinary, which, either by itself or taken along with a previous interlocutor or interlocutors, disposes of the whole subject-matter of the cause, or of the competition between the parties in a process of competition, although judgments shall not have been pronounced upon all the questions of law or fact raised in the cause; but it shall not prevent a cause from being held as so decided that expenses, if found due, have not been taxed, modified, or decerned for; and for the purpose of determining the competency of appeals to the Court of Session this provision shall be applicable to the causes in the Sheriff and other inferior courts, the name of the sheriff or other inferior judge or court being read instead of the words ‘the Lord Ordinary,’ and the name of the Sheriff Court or other inferior court being read instead of the words ‘Outer House.’’

Mrs Diverall and certain of the other claimants then appealed to the First Division.

When the case was called in Single Bills doubts were expressed by the Court as to the competency of the appeal, and the case was continued for a day that the point might be argued, though the respondents stated that they did not desire to raise any objection to the competency of the appeal.

Page: 103↓

On the case being again called, the appellants argued—The merits of the competition had been disposed of by the interlocutor of the Sheriff-Substitute. Any further interlocutors that remained to be pronounced were merely for the purpose of giving effect to that interlocutor, and as the question of expenses had been disposed of by the Sheriff, the conditions contained in the 53rd section of the Court of Session Act had been satisfied. Further, in a case like the present where the respondents did not object to the competency of the appeal, the Court would not be so ready to reject an appeal on the ground of incompetency— Reddie's Trustees v. Lindsay, March 7, 1890, 17 R. 558.

At advising—