Scottish Court of Session Decisions

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Cite as: [1919] ScotLR 58, [1919] SLR 58

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SCOTTISH_SLR_Court_of_Session

Page: 58↓

Court of Session Inner House First Division.

[Sheriff Court at Kirkcudbright.

Wednesday, October 15. 1919.

57 SLR 58

Stirling

v.

Graham.

Subject_1Process
Subject_2Appeal
Subject_3Competency
Subject_4Removing — Appeal against Allowance of Proof in Removing — Court of Session Act 1825 (6 Geo. IV, cap. 120), sec. 44 — Sheriff Courts (Scotland) Act 1913 (2 and 3 Geo. V, cap. 28), sec. 2.
Facts:

Held that an appeal against an interlocutor allowing proof in an action of removing was competent.

Headnote:

The Court of Session Act 1825 (6 Geo. IV, cap. 120) enacts—Section 44—“And be it further enacted by the authority as aforesaid that when any judgment shall be pronounced by an inferior court ordaining a tenant to remove from the possession of lands or houses, the tenant shall not be entitled to apply as above by bill of advocation to be passed at once, but only by means of suspension, as hereinafter regulated.”

The Sheriff Courts (Scotland) Act 1913 (2 and 3 Geo. V. cap. 28) enacts—Section 2—“In lieu of section twenty-eight there shall be inserted in the principal Act (7 Edw. VII. cap. 51) the following section 28 (1) 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—( d) Against which the sheriff or sheriff-substitute either ex proprio motu or on the motion of any party, grants leave to appeal. (2) Nothing in this section nor in section twenty-seven of this Act contained shall affect any right of appeal or exclusion of such right provided by any Act of Parliament in force for the time being.”

James Stirling, Laurieston Hall, Kirkcudbright, pursuer, brought an action of removing in the Sheriff Court at Kirkcudbright against John Graham and Robert Graham, defenders.

The pursuer was the proprietor of the farm of Bargatton in the parish of Balinaghie and stewartry of Kirkcudbright, and the defenders were joint tenants of the farm.

On 7th July 1919 the Sheriff-Substitute ( Napier) allowed a proof, and on the motion of the defenders allowed them or either of them to appeal to the Court of Session.

The defender John Graham appealed.

In the Single Bills the pursuer objected to the competency of the appeal, and argued—Any exclusion of appeal from the Sheriff Courts to the Court of Session existing as at 1913 was saved by the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), as amended by the Sheriff Courts (Scotland) Act 1913 (2 and 3 Geo. V, cap. 28), section 2. After a final decree in an action of removing the only competent method of review was by way of suspension—Judicature Act 1825 (6 Geo. IV, cap. 120), section 44; Barbour v. Chalmers Company 1891, 18 R. 610, per
Page: 59↓
Lord Adam at p. 614, 28 S.L.R. 446: Campbell's Trustees v. O'Neill, 1911 S.C. 188, 48 S.L.R. 115. The Judicature Act prescribed a special limited form of reviewing a final interlocutor in an action of removing. Consequently it could not be successfully argued that a more general method of review was open in the case of an interlocutor in an action of removing which was not final.

Counsel for the defender was not called upon.

Judgment:

Lord President—This is an appeal against an interlocutor of the Sheriff-Substitute at Kirkcudbright, dated 7th July 1919, allowing a proof to the parties. The competency of the appeal is challenged on the ground that the action in which the proof has been allowed is an action of removing, and that there is no appeal against a decree of removing. It appears to me that it does not signify what is to happen to the action after proof is led. If the Sheriff-Substitute has granted leave to appeal, then section 28 of the Sheriff Courts Act 1907, as amended by the Act of 1913, is directly applicable. It applies in terms to the case before us, and, if that is so, it appears to me that the Judicature Act 1825 does not apply. It is said that section 44 of the Act of 1825 constitutes a bar to procedure by way of appeal, but that section applies only where a decree of removing has been granted. Here we have no decree of removing, only an interlocutory judgment allowing proof, and therefore I think that the appeal is competent and that the case ought to go to the summar roll.

Lord Mackenzie—I concur.

Lord Cullen—I also concur.

Lord Skerrington—I am of the same opinion.

The Court repelled the objection to the competency.

Counsel:

Counsel for Pursuer— Constable, K.C.— R. C. Henderson. Agents— Scott & Glover, W.S.

Counsel for Defender— Gentles. Agents— Baillie & Gifford, W.S.
1919