Scottish Court of Session Decisions

The Glasgow Central Stores, Limited, having their registered office at 8 Hill Street, Edinburgh, proprietors of certain heritable subjects in Glasgow, brought a petition in the Sheriff Court of Lanarkshire at Glasgow praying the Court to ordain Alfred Goodson, mantle manufacturer, Glasgow, to flit and remove himself, servants and gear furth the premises under pain of ejection.

The pursuers averred that certain agreements for lease entered into between the pursuer's author Hugh Hutchison Gardiner and the defender, and proponed by the defender as his title to occupy the premises, constituted no title in the defender to remain in the subjects in defiance of the rights or contrary to the desire of the pursuers, in respect that these agreements for lease contained no definite ish, or any ish capable of definite ascertainment, and therefore were not binding on the pursuers as singular successors of the granter.

The defenders averred that the ish in the agreement of lease had been fixed by a separate agreement between the pursuers' authors and the defender, to the effect that the lease should be for three years, and that this had been followed by possession and rei interventus. The defenders also averred that the agreement of lease appeared ex facie of the defenders' disposition, and that the defenders were personally barred by their knowledge of the existence of the agreement of lease at the date of their acquisition of the property from questioning the pursuers' title or insisting in the action of removing.

The Sheriff-Substitute ( Guthrie) on May 10th 1901 repelled certain of the defenders' pleas-in-law, quoad ultra allowed the defender a proof by writ of the lease for three years averred in the defences, and fixed a diet for the proof. There was no finding as to expenses in the interlocutor.

On appeal the Sheriff ( Berry) on May 24th 1901 adhered to the judgment of the Sheriff-Substitute, and remitted to him for further procedure.

The defender appealed to the Court of Session. The pursuers objected to the competency of the appeal.

Argued for the pursuers—The appeal was incompetent. The interlocutor was

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not a final judgment, but merely an interlocutor allowing a limited proof. Such an interlocutor was not appealable— Shirra v. Robertson, June 7, 1873, 11 Macph. 660; Wilson v. Brakenridge, March 15, 1888, 15 R. 587.

Argued for the defender—The appeal was competent under section 40 of the Judicature Act (Court of Session Act 1825), and section 73 of the Court of Session Act 1868. The cases quoted on the other side— Shirra v. Robertson ( supra), and Wilson v. Brakenridge ( supra), were decisions on the Sheriff Court Act 1853, section 24, and did not decide the competency of appeal under section 40 of the Judicature Act. The observations in Shirra as to the appeal being incompetent under the Judicature Act were entirely obiter. The case of the defender here was that the Sheriff was wrong in limiting the proof to writ, inasmuch as the defender was entitled to a proof prout de jure of his averments as to the pursuers being personally barred by their knowledge of the lease, and as to the ish of the lease having been rendered definite by oral agreement followed by rei interventus. That being so, the case came directly within the principle laid down and followed in Robertson v. Earl of Dudley, July 13, 1875, 2 R. 935, per Lord President Inglis at p. 937. If the defender acted on the allowance of proof granted by the Sheriff, it might be held that he had acquiesced in the restriction of the mode of proof, and on the principle laid down in Robertson ( supra) it was the duty of this Court to decide whether the Sheriff was right in his limitation of the proof.