Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, c. 51, sec. 5, sub-sec. 5) is, so far as necessary, quoted supra in rubric.

William Muirhead of Hayocks, Stevenston, brought an action in the Sheriff Court at Kilmarnock against John J. B. Gilmour, solicitor, Stevenston, in which he craved decree (1) that an ex facie absolute disposition of his farm of Hayocks, which he had granted in favour of the defender, was granted in security only of an advance of £10; (2) that the said sum had been repaid; (3) that the defender should be ordained to reconvey the subjects; and (4) that the defender should be interdicted from exposing the subjects for sale.

The circumstances in which the action was brought were as follows:—In June 1906 Muirhead borrowed from Gilmour sums amounting to £170, he granted a bond and disposition over his farm of Hayocks for £160, and he also granted (1) an ex facie absolute disposition of the subjects, and (2) an assignation of certain life policies. (At the date of the loan the subjects, which were valued at about £1500, were burdened to the extent of £1200.) In January 1908 Gilmour, who had failed to recover payment of his advances, surrendered the policies, receiving therefor a sum of £34 odd. Thereafter, in February 1908, he advertised the farm for sale by public roup. Muirhead then brought the present action.

The pursuer averred that as the defender had recovered payment of the £10 by surrendering the policies, he was no longer entitled to retain the subjects disponed in the said disposition, or to expose them for sale. The defender averred that the disposition was in security of all his advances,—including expenses connected therewith—and that unless these were repaid he was entitled to sell the subjects. In the course of proceedings the pursuer deposited a sum of £144 odd, which he alleged was the balance due by him. The difference between the sum admitted by the pursuer to be due and the defender's claim was about £10.

On 27th January the Sheriff-Substitute ( Mackenzie) closed the record; and on the same date the defender required the cause to be remitted to the First Division of the Court of Session in terms of section 5 (5) of the Sheriff Courts (Scotland) Act 1907.

On the case appearing in the Single Bills counsel for the pursuer objected to the competency of the transmission, on the ground that the value of the cause was below the limit stated in the Act.

Counsel for the defender submitted that the question at issue was whether the defender was or was not entitled to sell the said subjects, which were admittedly upwards of £1000 in value.