Scottish Court of Session Decisions

Lord Dundas—An objection was taken to the competency of this appeal. The action was brought by the Lord Provost and Magistrates of Glasgow against (1) the firm of Masterman & Williamson, as arrestees, and (2) a certain James Macleish as principal debtor. The appellants, the General Accident, Fire, and Life Assurance Corporation, Limited, compeared by minute and were sisted as defenders. The real competition, or at all events the serious competition, in the case is between them and the pursuers. In the interlocutor appealed against the Sheriff “sustains the appeal; recals the Sheriff-Substitutes interlocutor of 17th December 1912; finds that the articles referred to in the initial writ were delivered in security of prior debt to the minuters, the General Accident Corporation, Limited, within sixty days of the notour bankruptcy of the debtor, and that the security is invalid; repels the pleas-in-law for the said General Accident Corporation, Limited; finds no expenses due to or by the said Corporation, and remits the cause to the Sheriff-Substitute.” The question is, whether that interlocutor is open to appeal. That depends upon various statutory provisions, the first being section 28 of the Sheriff Courts (Scotland) Act 1907 as it now stands amended by the recent Sheriff Courts (Scotland) Act 1913. There one finds that “Subject to the provisions of this Act it shall be competent to appeal to the Court of Session against a judgment either of a Sheriff or of a Sheriff-Substitute if the interlocutor appealed against is a final judgment or is an interlocutor” of one or other of four classes which are specified, and which admittedly do not cover the interlocutor with which we are dealing. The question therefore so far is, does this interlocutor fall within the words “final judgment”? “Final judgment” is defined in section 3, sub-section ( h), of the Act of 1907, which is not altered by the Act of 1913—“‘Final judgment’ means an interlocutor which by itself, or taken along with previous interlocutors, disposes of the subject-matter of the cause, notwithstanding that judgment may not have been pronounced on every question raised, and that expenses found due may not have been modified, taxed, or decerned for.” We must further also have regard to section 53 of the Court of Session Act of 1868, which has not been in any way touched or repealed by recent legislation, and which, although in terms applicable to Court of Session procedure, is by the concluding words made applicable also to appeals from the inferior courts. Section 53 says—“It shall be held that the whole cause has been decided in the Outer House when an interlocutor has been pronounced by the Lord Ordinary, which either by itself or taken along with a previous interlocutor or interlocutors, disposes of the whole subject-matter of the cause, or of the competition between the parties in a process of competition, although judgment shall not have been pronounced upon all the questions of law or fact raised in the cause;” and then it goes on to deal with the matter of expenses.

Now these being the relevant sections, the question for our decision is whether the interlocutor before us is an appealable interlocutor? I think it is. It is quite true that the learned Sheriff's interlocutor does not pronounce an operative decree in terms of either of the alternative craves of the petition. But his interlocutor does deal with the validity or invalidity of the appellants' security; it holds it to be invalid, and repels all their pleas. Further, the interlocutor deals with the matter of expenses as between the appellants and the pursuers. They have, so far as I see, no further interest or place in the litigation. It is true that there is a remit of the case back to the Sheriff-Substitute; but in spite of that, for all I know, there may be no further procedure in the case. At all events, the appellants are forced out of the case in the Court below; and it seems to me that if they cannot appeal now they will never be able to do so. The competition in which they are concerned has been, in my judgment, finally disposed of in the Court below. I am for repelling the objection and proceeding to hear the case on the merits.

Lord Mackenzie—I am of the same opinion. The ground upon which I consider that the appeal is competent is that there was a proper competition in which the appellants were one of the parties, and that by the interlocutor under appeal the whole of their pleas and contentions are finally disposed of. No subsequent interlocutor can affect their rights in any way; they are finally put out of the case. Now unless we are to consider the term “final judgment” in the Sheriff Courts Act in a narrower sense than when one is dealing with an interlocutor of the Court of Session, then it is a final judgment, because it finally disposes of one of the parties in the competition. I think we are entitled to have regard to the terms of section 53 of the Court of Session Act of 1868 in order to enable us to put a proper construction upon the term “final judgment” in section 28 (1) of the Sheriff Courts Act.

Lord Cullen—I entirely concur.