Scottish Court of Session Decisions

Sir Charles Ross of Balnagown, Ross-shire, raised an action in the Sheriff Court of Ross against his mother, Lady Ross, praying the Court “summarily to eject the defender, and her goods, gear, and effects … furth and from” … the farms of Ardmore, Garty, and Marybauk, in the county of Ross and Cromarty.

The defender pleaded, inter alia, (1) that the action was incompetent in the Sheriff Court, in respect that it raised a question of heritable right and validity of tenancy of subjects above £50 in yearly value, and £1000 in capital value; (2) that the pursuer's averments were irrelevant; and (7) that the pursuer had homologated the defender's tenancy.

After various procedure the Sheriff ( Johnston), on 4th September 1894, pronounced an interlocutor, by which he repelled the above-mentioned pleas for the defender, and allowed her a proof in support of other pleas stated by her upon the merits, and to the pursuer a conjunct probation.

The defender appealed against this interlocutor of the Sheriff to the First Division of the Court of Session.

The pursuer objected to the competency of the appeal.

By section 36 of 50 Geo. III. c. 112, it was enacted—“That bills of advocation from the sheriffs and other inferior judges in Scotland against interlocutory judgments shall be allowed only on the following grounds, viz., first, of incompetency, including defect of jurisdiction, personal objection to the judge, and privilege of party; secondly, of contingency; thirdly, of legal objection with respect to the mode of proof, or with respect to some change of possession, or to an interim decree for a partial payment, provided that in the cases specified in this third head leave is given by the inferior judge.”

By section 24 of the Sheriff Court Act of 1853 (16 and 17 Vict. c. 80) it is provided—“It shall be competent in any cause exceeding the value of £25 to take to review of the Court of Session any interlocutor of a sheriff sisting process, and any interlocutor giving interim decree for payment of money, and any interlocutor disposing of the whole merits of the cause, although no decision has been given as to expenses, or although the expenses, if such have been found due, have not been modified or decerned for, but it shall not be competent to take to review any interlocutor, judgment, or decree of a sheriff, not being an interlocutor sisting process, or giving interim decree for payment of money, or disposing of the whole merits of the cause as aforesaid and the provisions of 50 Geo. III. c. 112, in so far as inconsistent with this enactment were thereby repealed.

Argued for the pursuer—The appeal was incompetent—(1) If brought under the Act of 1825 (6 Geo. IV. c. 120), sec. 40, as originally maintained, it was incompetent without leave of the inferior judge, which had not been obtained, in respect that the claim in the action was not simply pecuniary, and did not bear on the face of it to be above £40 in amount—Act of Sederunt, July 11, 1828, sec. 5. No application having been made to the Sheriff in terms of that section, the appeal should be dismissed. The present case fell under that section, as was shown by the analogous cases of Ritchie v. Ritchie, October 22, 1870, 9 Macph. 43; Rain v. Gibb, May 19, 1877, 4 R. 732; Hamilton v. Hamilton, March 20, 1877, 4 R. 688; Matheson v. Mackenzie & Company, June 13, 1837, 4 Scot. Jur. 512. (2) The appeal if brought under 50 Geo. III. c. 112, sec. 36, was excluded by sec. 24 of the Sheriff Court Act of 1853, which, with certain exceptions, repealed the provisions of that Act. The present appeal did not constitute one of those exceptions. The interlocutor appealed against was not one giving interim decree for payment of money, or disposing of the whole merits of the case, or sisting process. Therefore the appeal was not included in the exceptions, and was incompetent.

Argued for the defender—1. The appeal was competent under 6 Geo. IV. cap. 120, sec. 40, for the purpose of removing the case to the Court of Session. The value of the subject in dispute was manifestly far more than £40. The question at issue was as to the right of occupancy of farms for which a rental of £600 per year was paid, and the loss to the defender if summarily ejected would obviously far exceed £40. The Court would not look merely at the sum concluded for, but beyond it to the subject substantially in dispute— Drummond v. Hunter, January 12, 1867, 7 Macph. 347; Cunningham v. Black, January 9, 1883, 10 R. 441. 2. The Sheriff was not a competent judge, because the questions at issue were of heritable rights, and, as had been shown, the amount at stake exceeded £50 per year. The cases of Robertson's Trustees v. Lindsay, December 20, 1873, 1 R. 323, Waterstone v. Mason, June 30, 1846, 8 D. 944, and Nisbet v. Aikman, January 12, 1866, 4 Macph. 284, showed that a competition between property and leasehold titles introduced the element of heritable right sufficiently to exclude the jurisdiction of the Sheriff. An appeal was competent under 50 Geo. III. c. 112, sec. 36, on the ground of “incompetency, including defect of jurisdiction,” which was the defender's first plea and ground of appeal, and this ground of appeal was not inconsistent with and was therefore not taken away by section 24 of the Sheriff Court Act of 1853—Mackay's Practice, i. p. 456. This was not a question of reviewing the Sheriff's decision, but merely of holding that he was an incompetent judge— Harrington v. Richardson, January 20, 1854, 16 D. 368.

At advising—