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[Sheriff Court at Aberdeen.
The Burial Grounds (Scotland) Act 1855, section 10, allows in certain events “an appeal to any of the Lords Ordinary of the Court of Session, whose decision shall be final, such appeal always being presented within fourteen days of the date of the sheriff's judgment.” Section 32 enacts—“No interlocutor or deliverance of a sheriff under this Act, excepting as herein provided, shall be in any way subject to review, or to be set aside by reason of any defect of form therein, or in the procedure on which it followed.”
Held that the only appeal allowed by the Act was the appeal to the Lord Ordinary provided for in section 10, and that there was no appeal from the Sheriff-Substitute to the Sheriff.
Sections 10 and 32 of the Burial Grounds (Scotland) Act 1855 are sufficiently quoted in the rubric.
The Parish Council of the parish of Strichen, in the County of Aberdeen, presented a petition in the Sheriff Court at Aberdeen, in which they prayed the Court “to appoint a time from and after which” a certain piece of ground “shall be deemed part of the burial ground of the said parish of Strichen; to grant sanction to the petitioners under such restrictions and conditions as they think proper to sell the exclusive right of burial, either in perpetuity or for a limited period in said ground, which the petitioners have resolved, subject to such sanction, to wholly appropriate for that purpose and for the other exclusive rights mentioned in section 18 of the Burial Grounds (Scotland) Act 1855; and to approve of the fees and payments in respect of interments in said burial ground fixed by the petitioners; and to find any party opposing the prayer of this petition liable in expenses.”
The petition was opposed by the Reverend Richard Goodwillie, the minister of the parish of Strichen, on the ground of certain alleged irregularities on the part of the petitioners. On 15th November the Sheriff-Substitute ( A. J. Young) pronounced an interlocutor granting the prayer of the petition and fixing the 1st December 1907 as the date from which the ground in question was to be deemed part of the burial ground of the parish.
On 16th November the respondent appealed to the Sheriff.
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On 10th December 1907 the Parish Council as then constituted passed a resolution not to proceed further with the petition, and a joint minute was lodged for them and the respondent craving the Sheriff to sustain the appeal, recal the Sheriff-Substitute's interlocutor, and dismiss the petition. Minutes were also lodged for John Sleigh and another, two of the minority of the Parish Council, and for certain ratepayers, protesting against the first-mentioned minute as an agreement ultra vires and incompetent, and claiming to be heard on the competency of the appeal.
On 26th December the Sheriff ( Crawford) pronounced an interlocutor allowing these minutes to be received, and sisting the protesting minuters as parties to the case.
On 22nd February 1908 the Sheriff dismissed the appeal as incompetent.
Note.—“This is an appeal against a decree of the Sheriff-Substitute, pronounced in a petition by the Parish Council of Strichen, presented under section 9 of the Burial Grounds (Scotland) Act 1855. I am of opinion that the appeal is not competent, and that I have no jurisdiction to entertain it. By the statute a certain jurisdiction is conferred, and a corresponding duty laid upon the Sheriff. It was conceded and could not successfully have been disputed that the word ‘Sheriff,’ as used in the statute, includes Sheriff-Substitute, as it always does, unless the contrary is expressed, and that the petition was competently presented to the Sheriff-Substitute and dealt with by him. Now, clause 32 of the Act is in these terms—‘No interlocutor or deliverance of a sheriff under this Act, excepting as herein provided, shall be in any way subject to review or to be set aside by reason of any defect of form therein or in the procedure on which it followed.’ The words of that section, according to their plain meaning, appear to me to exclude an appeal from the Sheriff-Substitute to the Sheriff. The words ‘excepting as herein provided’ make that all the more evident. The exception refers to an appeal which is allowed in certain cases under section 10 to a Lord Ordinary of the Court of Session. That appeal must be presented within 14 days of the date of the Sheriff's judgment. That would not leave time for an appeal from the Sheriff-Substitute to the Sheriff, and I do not think it possible to interpret the words ‘Sheriff's judgment’ as meaning a judgment on appeal from the Sheriff-Substitute.
“The statutes are now numerous in which a new jurisdiction and duty are conferred and laid upon the Sheriff for the purposes of the statute different from his jurisdiction as judge ordinary. The procedure prescribed in these statutes varies very much in detail, and each must be interpreted by its own terms. Where there is room for holding that Sheriff means the Sheriff Court with its ordinary procedure, then the appeal from the Sheriff-Substitute to the Sheriff will remain, and any different intention must be clearly and unmistakably expressed. Such a case was The Magistrates of Portobello v. The Magistrates of Edinburgh, 9th November 1882, 10 R. 130, 20 S.L.R. 92, in which the language of the Rivers Pollution Prevention Act made it clear that the ordinary procedure of the Sheriff Court was to be followed, and the subject-matter of the petition to the Sheriff was similar to that of an ordinary Sheriff Court action. There is, however, a series of statutes which differ from each other in detail, some of them, though not all, imposing upon the Sheriff a duty which is rather ministerial than judicial, but agreeing in this, that the purpose of the statute is to be worked out under a procedure marked by more speedy finality and greater dispatch than an ordinary litigation would afford. One feature common to such Acts is that they provide for a single decision in the Sheriff Court which in some cases is final, while in others there is a single limited appeal. In some statutes, especially of late years, that object is attained by limiting the jurisdiction to the Sheriff-Principal. But a single decision may be contemplated without such limitation. An early case of that kind was Balderston v. Richardson, 20th February 1841, 3 D. 597, arising under the Bankrupt Act, 2 and 3 Vict. cap. 41. Lord Gillies observed, ‘The Sheriff in the statute means either the Substitute or the Principal, but not both,’ and that observation is equally applicable to the present case. The case of Fulton v. Dunlop, 31st May 1862, 24 D. 1027, arising under the same statute as the present, is very nearly a direct precedent. It was there stated by the Sheriff-Substitute and assumed throughout that there was no appeal from him to the Sheriff. It also appears from the report that a year or two previously another application had been made under the Act by the Parochial Board, and that the Sheriff had dismissed an appeal to him from the Sheriff-Substitute as incompetent. The same point has been raised in other cases, such as Fleming v. Dickson, December 19, 1862, 1 Macph. 188; Leitch v. The Scottish Legal Burial Society, October 21, 1870, 9 Macph. 40, 8 S.L.R. 8; and Bone v. The Sorn School Board, March 16, 1886, 13 R. 768. Those cases decided that the Sheriff-Principal may take up the case though the petition has been presented to the Sheriff-Substitute, and he has dealt with preliminary pleas, and that even when the Sheriff has done so under the mistaken impression that an appeal to him was competent. He can intervene so long as no final decision has been pronounced. But all these cases agree in this, that only one decision in the Sheriff Court is contemplated. A recent case was decided by the First Division under section 57 of the Roads and Bridges Act 1878 affirming a judgment by which I held that an appeal to the Sheriff was incompetent. The clause of finality was in similar terms to those of section 32 above quoted, and I cannot distinguish between the two cases. The case which was mentioned during the debate (and Mr Duncan, the agent of one of the parties in this case, was engaged in it) is
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not reported. The name was, I think, Aberdeen District Council v. Milne, and the year 1901. I have thought it desirable to refer to some of the cases in which a similar question has been mooted, and which seemed to me valuable as illustrating the present case. But, as I have said, each statute must be interpreted by its own terms. In the case of Fulton we have what almost amounts to a direct precedent, and even without the help of that case I should have come to a clear conclusion that I have no jurisdiction to entertain this appeal.”
The petitioners and the respondent Good-willie appealed to the Court of Session.
Counsel for the appellants argued that an appeal to the Sheriff was competent, and referred to Leitch v. Scottish Legal Burial Society, October 21, 1870, 9 Macph. 40, especially Lord Cowan at p. 42, 8 S.L.R. 8.
Counsel for the respondents were not called upon.
The Court dismissed the appeal.
Counsel for the Reverend Richard Goodwillie (Respondent and Appellant), and for the Parish Council of Strichen (Petitioners and Appellants)— Chree. Agents— Henry & Scott, W.S.
Counsel for John Sleigh and Others (Respondents)— Hunter, K.C.— Macmillan. Agents— Alex. Morison & Company, W.S.