Scottish Court of Session Decisions

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Cite as: [1912] ScotLR 716, [1912] SLR 716

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SCOTTISH_SLR_Court_of_Session

Page: 716↓

Court of Session Inner House First Division.

(Single Bills.)

[Sheriff Court at Dundee.

Friday, May 17. 1912.

49 SLR 716

David Allen & Sons, Billposting Limited

v.

The Dundee and District Billposting Company, Limited.

Subject_1Sheriff
Subject_2Process
Subject_3Appeal
Subject_4Competency — Value of Cause — Action for Interdict and £50 Damages — Appeal on Question of Damages only — Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, c. 51), sec. 28.
Facts:

The tenant of an advertising hoarding brought an action of interdict and damages in the Sheriff Court against his successor, averring that the latter had assumed possession too soon, thereby interfering with his (the pursuer's) advertisements, the sum claimed as damages being £50. By the time the Sheriff-Substitute came to deal with the question of damages the pursuer's lease had expired, so that the crave for interdict was no longer part of the case. He accordingly recalled the interim interdict originally granted, and awarded the pursuer £50 damages. The defenders appealed.

Held that as the conclusions for interdict had become of purely historical interest, the value of the cause was now entirely pecuniary, and that as the sum sued for did not exceed £50, the appeal was incompetent and must be dismissed.

Headnote:

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51) enacts, sec. 28—“Subject to the provisions of this Act, it shall be competent to appeal to the Court of Session against a judgment of a Sheriff-Substitute or of a Sheriff, but that only if the value of the cause exceeds fifty pounds. …”

David Allen & Sons, Billposting Limited, Dundee, pursuers, brought an action against the Dundee and District Billposting Company, Limited, in which they craved interdict against the Dundee and District Billposting Company, Limited, defenders, using a certain billposting stance
Page: 717↓
and hoarding in Dundee, of which stance and hoarding they (the pursuers) claimed to be respectively tenants and owners.

On 2nd December 1911 the Sheriff-Substitute granted interim interdict.

Against this interlocutor the defenders appealed to the Sheriff ( Ferguson), who on 8th December 1911 refused the appeal.

Thereafter on 7th March 1911 the Sheriff-Substitute ( Neish), after a proof, found that the pursuers' lease of the said premises expired on 28th December 1911, and that they (the pursuers) were entitled to remove the hoarding as a trade fixture. He accordingly recalled the interim interdict, and decerned against the defenders for £50 damages, in respect of their having illegally interfered with the pursuers' advertisements on the said hoarding.

The defenders appealed.

On the case appearing in the Single Bills, counsel for the pursuers objected to the competency of the appeal on the ground that the value of the cause was under £50, the only question left in the case being the amount of damages. He cited the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, c. 51), secs. 7 and 28.

Argued for defenders—The appeal was competent, for the action when raised contained conclusions for interdict. It was immaterial that the question of interdict was no longer before the Court. He cited Thomson v. Barclay, February 27, 1883, 10 R. 694, 20 S.L.R. 440. [ Lord Johnston referred to Duke of Argyll v. Muir, 1910 S.C. 96, 47 S.L.R. 67.]

Judgment:

Lord President—This case as it was originally presented in the Sheriff Court was an action of interdict and damages raised by a tenant of a hoarding against a tenant who succeeded him when his term of tenancy was over, upon an averment that this incoming tenant had, so to speak, assumed possession too soon, and had put his bills upon the hoarding and obliterated the bills of the prior occupant. The Sheriff-Substitute granted interim interdict. At the time that he came to pronounce judgment on the question of damages the period of the first lease had expired, and therefore there was no longer room for any pronouncement upon the matter of interdict. Accordingly the Sheriff-Substitute recalled the interim interdict previously granted, and found damages due and assessed them at £50. An appeal was taken to this Court, and the objection was raised upon the other side that it was incompetent because the action does not exceed £50.

I am of opinion that that is a good objection. No doubt the action as it was originally raised contained a conclusion for interdict, and if there were anything of that conclusion left in the action it might be competent for us to deal with the case on appeal. But the conclusion for interdict is now of purely historical interest, and there is nothing left in the case but the £50. Where there is any other consideration in a case—any consideration which cannot be measured in money—it would be out of the question to disallow an appeal upon the ground of the pecuniary value of the cause, but as the value of this cause is entirely pecuniary, and also below the prescribed amount, I am of opinion that the appeal must be refused as incompetent.

Lord Johnston—I agree.

Lord Skerrington—I also agree.

Lord Kinnear and Lord Mackenzie were sitting with the Extra Division.

The Court sustained the objection and dismissed the appeal.

Counsel:

Counsel for Pursuers— Gentles. Agents— J. Ferguson Reekie, Solicitors.

Counsel for Defenders— J. D. Johnston. Agent— Arthur C. M'Laren, Solicitors.
1912