Scottish Court of Session Decisions

Richard Smith & Sons raised an action in the Sheriff Court of the Lothians and Peebles against William Spence for payment of £37, 19s. 6d. The action was brought under the Debts Recovery Act 1867. After a proof, the Sheriff-Substitute ( Hamilton) on 10th March 1898 pronounced the following interlocutor:—“Repels the defences, and decerns against the defender in terms of the libel: Finds the pursuers entitled to expenses: Appoints an account thereof to be made up, and remits the same when lodged to the Auditor of Court to tax and report.”

The defender appealed to the Sheriff ( Rutherfurd), who on 10th June recalled the Sheriff-Substitute's interlocutor in so far as it decerned against the defender in terms of the libel, “and in lieu thereof

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ordains the defender to make payment to the pursuers of the sum of £36, 8s., and decerns: Quoad ultra dismisses the appeal, and remits the case to the Sheriff-Substitute.”

On 27th June the Sheriff-Substitute pronounced the following interlocutor:—“The Sheriff-Substitute approves of the Auditor's report taxing the pursuers' account of expenses of process at the sum of £34, 9s. Id., and decerns against the defender for payment to the pursuers of said sum accordingly.”

On 4th July the following note of appeal was lodged by the defender's agent:—“I appeal against the judgment of the Sheriff to the First Division of the Court of Session.”

The Debts Recovery (Scotland) Act 1867 (30 and 31 Vict. cap. 96), sec. 10, provides that “it shall not in any case be competent to appeal until judgment has been pronounced by the Sheriff finally disposing of the cause, but an appeal when taken shall have the effect of submitting to review all the previous proceedings and interlocutors.”

Sec. 11 enacts that, subject to the provisions contained in sec. 10, “where the case has been heard and the judgment has been given by the Sheriff Substitute, it shall be competent for either party to appeal against such judgment to the Sheriff.”

Sec. 12 enacts that, subject to the provisions contained in sec. 10, and where the cause exceeds the value of £25, “where the case has been heard and the judgment pronounced by the Sheriff (and not by the Sheriff-Substitute) in the first instance, it shall be competent for either party to appeal against such judgment to either of the Divisions of the Court of Session,”

Sec. 13. “Where the case has been heard by the Sheriff on appeal and judgment pronounced by him as above provided for, it shall be the duty of the Sheriff-Clerk, immediately on receiving the Sheriffs interlocutor, to transmit a copy thereof through the post-office to the parties or their procurators, and within eight days … it shall be competent for either of the parties to appeal against his (the Sheriff's) judgment in the same manner and to the same effect and under the same limitations as provided for in the immediately preceding sections with regard to appeals from judgments of the Sheriff in the first instance.”

The pursuers maintained that the appeal was incompetent, and argued—This was .an appeal against a judgment of the Sheriff-Substitute. No appeal direct from the Sheriff-Substitute to the Court of Session was provided by the statute. If the defender had desired to appeal he should have appealed in time against the Sheriff's interlocutor of 10th June, which was the interlocutor disposing finally of the merits of the case. An interlocutor merely decerning for expenses was not appealable— Tennents v. Romanes, June 22, 1881, 8 R. 824; ‘Thompson & Co. v. King January 19, 1883, 10 R. 469.

Argued for the defender—The appeal was competent. The defender could not have appealed against the Sheriff's interlocutor of 10th June, for that was not a final judgment, and contained no operative decree for expenses— Governors of Stricken Endowments v. Diverall, November 13, 1891, 19 R. 79. The Sheriff had done what was incompetent in remitting to the Sheriff-Substitute— Bennett v. Wilson June 9, 1888, 15 R. 715; but it would be very hard for the defender to be deprived of his right of appeal by this proceeding on the part of the Sheriff. The Court, in any event, had power under sec. 10 to order the case to be reheard.

At advising—