Scottish Court of Session Decisions

Mrs Martha Ferguson or Tosh, Kirriemuir, raised an action of accounting in the Sheriff Court of Forfarshire against her father William Ferguson, farmer, Glen Prosen, with a conclusion for payment of £480.

The pursuer averred that the defender had had entire control of her money matters, that she had paid over to him all her wages, and that she had handed him certain deposit-receipts, which he had subsequently induced her to endorse, had then uplifted, and had failed to account for.

The Sheriff-Substitute at Forfar ( Robertson) allowed both parties a proof of their averments, and the Sheriff ( J. C. Thomson) adhered.

The defender thereupon appealed to the Court of Session, and moved for a proof there.

The Judicature Act 1825 (6 Geo. IV. cap. 120), sec. 40, provides “that in all cases originating in the inferior Courts in which the claim is in amount above £40, as soon as an order or interlocutor allowing a proof has been pronounced in the inferior Courts, it shall be competent to either of the parties, or who may conceive that the case ought to be tried by jury, to remove the process into the Court of Session.”

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 73, enacts that “it shall be lawful, by note of appeal under this Act, to remove to the Court of Session all causes originating in the inferior Courts in which the claim is in amount above £40, at the time, and for the purpose, and subject to the conditions specified in” the Judicature Act 1825, “and such causes may be remitted to the Outer House.”

Argued for the appellant—It was decided once for all in Cochrane v. Ewing, July 20, 1883, 10 R. 1279, that under the 40th section of the Judicature Act the Court was entitled to deal with any cause removed from an inferior Court as if it had originated in the Court of Session. That decision had been followed in Willing v. Heys, November 15, 1892, 20 R. 34; and the mere fact that the interest at stake was trifling was not in itself sufficient to justify the Court in sending the case back to the Sheriff— Crabb v. Fraser, March 8, 1892, 19 R. 580; Willison v. Petherbridge, July 15, 1893, 20 R. 976. There was no special feature in this case to make it peculiarly suitable for the Sheriff Court. Proof should therefore be led in the Court of Session.

Argued for the respondent—The Court had full power to remit to the Sheriff, and had exercised it where the case seemed specially suitable for trial in the Sheriff Court— Bain v. Countess of Seafield, February 13, 1894, 21 R. 536. It would be putting the pursuer to needless expense to make her bring witnesses to Edinburgh. This was just the kind of case that should be disposed of in the Sheriff Court.