Scottish Court of Session Decisions

This was an appeal from a judgment of the Sheriff of Roxburgh ( Salvesen) in an action of filiation and aliment at the instance of Christina Tait, farm worker, Colmslie, Galashiels, against Richard Lees, farm servant, Kittyfield, near Melrose.

The prayer of the petition was, “To ordain the defender to pay to the pursuer—( First) The sum of £2, 2s., with the legal interest thereon from 13th December 1901 till payment; ( second) the sum of £6, 10s. per annum for seven years.”

The pursuer averred that she gave birth to an illegitimate child on 13th December 1901, of which the defender was the father.

On 10th April 1902 the Sheriff-Substitute ( Baillie) closed the record and allowed a proof, which was taken on 8th May.

On 6th May the pursuer's child died, and accordingly on 10th May she lodged a minute in process, by which she restricted the conclusions of the petition to £2, 2s. of inlying expenses and the sums of £1, 12s. 6d. and 19s. 2d. as aliment for the child until its death.

On 16th May the Sheriff-Substitute assoilzied the defender from the conclusions of the action.

The pursuer appealed to the Sheriff, who on 19th June 1902 recalled the interlocutor of the Sheriff-Substitute, and decerned against the defender for payment of the sums concluded for, as restricted by the minute of 10th May.

The defender appealed to the Court of Session.

Counsel for the respondent objected that the appeal was incompetent in virtue of the provision of the Sheriff Court Act 1853, section 22 (quoted in rubric), on the ground that the sum sued for at the date when the interlocutors of the Sheriff-Substitute and the Sheriff were pronounced was less than £25, and therefore that the value of the cause was below the statutory limit— Dobbie v. Thomson, June 22, 1880, 7 R. 983, 17 S.L.R. 677; Cairns v. Murray, November 21, 1884, 12 R. 167, 22 S.L.R. 116.

Counsel for the respondent argued that the appeal was competent. Competency was to be determined by the value of the cause at the date of litiscontestation. That took place at latest when the record was closed, and the value of the cause then was above £25.

Lord President—It is not necessary in this case to consider whether, if the value of the cause had been limited before the record was closed and parties had joined issue, this would have affected the competency of an appeal. But here not only was the value of the cause above the limit for appeal when the record was closed, but also when the proof was taken. The case was appealable at that stage, and I do not think that anything which has since happened could affect the right of appeal.

Lord Adam—I am of the same opinion. The Sheriff Court Act declares that it shall not be competent to appeal “any cause not exceeding the value of £25.” The general rule, as I have understood, is to look at the conclusions of the action and see whether they exceed the statutory amount. Then again I think that if an appeal is competent to one of the parties it must be competent to the other, and accordingly that it cannot be in the power of a pursuer by merely restricting the conclusions of an action to deprive his opponent of a right of appeal. I agree with your Lordship that it is unnecessary in this case to consider whether or not, in initio litis, and before the record is closed—in other words, before the parties have joined issue—it is competent to restrict the conclusions of an action so as to render it unappealable. That was what was decided in the case of Cairns, and I have nothing to say against that decision. But here the record was closed and issue joined and a proof taken in an action whose conclusions as they then stood, unrestricted, clearly made it a cause exceeding in value £25. In these circumstances, notwithstanding the minute of restriction subsequently put in, I think the appeal is competent.

Lord M'Laren—We are accustomed to consider an appeal from the Sheriff Court as a new action to certain effects, and if the Legislature had provided that the value of the cause, as originated by the note of appeal, or, according to the older practice, by bill of advocation, was to determine the competency of the appeal, that would be a perfectly intelligible limitation. But as that is not the law, and as the competency of the appeal is determined by the value of the cause in the Sheriff Court, I cannot see how that criterion can be affected by circumstances supervening after the question between the parties has been fixed by litiscontestation, or at least by closing the record.

Lord Kinnear concurred,

The Court repelled the objection to the competency of the appeal.