Scottish Court of Session Decisions

William Alexander Sked Brotherston, Carlethan, Lasswade, brought an action in the Sheriff Court at Edinburgh against Josiah Livingston, 4 Minto Street, Edinburgh, and John Sime, Greenbank, Lasswade, praying the Court “to grant decree against the above-named defenders ordaining them,

conjunctly and severally, or severally, to pay to the pursuer the sum of £22, 8s. sterling, with interest thereon at the rate of £5 per centum per annum from the 22nd day of December 1890 till payment; and to grant decree against the above-named defender John Sime, ordaining him to pay the pursuer the sum of £1, 1s. 10d. sterling, with interest thereon at said rate from said date till payment.”

In an appeal upon the preliminary pleas, the Sheriff ( Blair) assoilzied the defender Livingston from the conclusions of the action, and remitted to the Sheriff-Substitute to proceed with the cause so far as directed against the defender Sime.

Against this interlocutor the pursuer appealed to the First Division.

When the case was called the defenders objected to the competency of the appeal, on the ground (1) that the interlocutor appealed against was not an interlocutor disposing of the whole merits of the cause as required by the Sheriff Court Act of 1853, sec. 24; and (2) if it were so with regard to Livingston, the action against him was for a sum of less than £25, and therefore not appealable—Sheriff Court Act 1853, sec. 22. The sum of £1, 1s. 10d. for which Sime was sued, along with interest on the other sum, admittedly made the amount he was asked to pay more than £25, but the former sum was not in the action against Livingston, which was a separate action for less than £25. There was no community of interest between the parties, therefore the cases relied on by the appellant did not apply, and Lord Neaves' opinion in Dykes' case was in the respondents' favour.

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Argued for the appellant—(1) There was community of interest here, and therefore really one action, which being for more than £25 was appealable— Dykes v. Merry & Cuninghame, March 4, 1869, 7 Macph. 603; Nelson, Donkin, & Company v. Browne, June 10, 1876, 3 R. 810. (2) This

must be taken as a final judgment in the cause as against Livingston; if appeal were not taken now, the decree assoilzieing him would be extracted, and it would be impossible to appeal against it at a later date.

At advising—