Scottish Court of Session Decisions

At advising—

Lord President—This appeal is presented under the authority of the 40th section of the Judicature Act of 1825.

The last interlocutor pronounced in the cause is dated 15th December 1880, and in it “the Sheriff-Substitute on pursuer's motion assigns as a new diet of proof Monday the 20th day of December current.” That is not an appealable interlocutor on the face of it. But it is said that the proof which was directed to proceed by that interlocutor was allowed by a previous interlocutor dated 2d September, and that if it be competent to bring under review the interlocutor of 2d September, then this appeal may be sustained. But strangely enough the Judicature Act does not assign a time within which interlocutors may be appealed for jury trial. It therefore becomes necessary to see if there is any other limit in point of time. The Act of Sederunt of 12th November 1825, which immediately followed the Judicature Act, regulates a good many things which were not regulated by the Judicature Act itself, and the Act of Sederunt of 11th July 1828 repeals a great many of the regulations of the Act of Sederunt of 1825. It is not necessary to refer to the terms of the older Act of Sederunt. The fifth section of the Act of Sederunt of 1828 is thus expressed—[reads clause as quoted supra]. Now, this regulation does not in so many words say that the bill of advocation must be presented within fifteen days, but it implies it, because it says that failing such bill being presented the proof is to proceed in the Inferior Court, and after this no application to remove the case from the Inferior Court could be sustained.

All difficulty is set aside when we look at the cases which have been decided under the Act. In the case of M'Farlane or Graham v. Duke of Montrose, Nov. 24, 1826, 5 Shaw 38, new ed. 36, it was held “that fifteen days having elapsed from the date of an interlocutor in the Inferior Court allowing a proof before a bill of advocation was presented, the bill was incompetent, although it was prescribed within fifteen days from the time a commission was granted for taking the proof; and (2d) that the limitation in point of time prescribed by the Act of Sederunt 12th November 1855 is not ultra wires of the Court.” That case was in the First Division of the Court. In the same volume there is another case in the Second Division of the Court, viz., Falconer v. Shiells & Co., July 10, 1827, 5 S. 910, new ed. 853. There it was held “that an advocation under section 40 of the Judicature Act of a cause in which an interlocutor allowing a proof has been pronounced is incompetent, under the Act of Sederunt following on the Judicature Act, after the lapse of fifteen days from the date of the interlocutor; and (2) that it was not ultra tires of the Court to impose this limitation on the power of advocating, though given in the statute without limitation.” That case occurred in the Second Division, and the Judges “entertaining great doubts of the judgment in the case of M'Farlane, ordered cases for the opinion of the whole Court. But the consulted Judges returned an unanimous opinion that not only from the terms of the Act of Sederunt 12th November 1825, but from the particular circumstances of this case, the said interlocutor is right, and ought to be adhered to.” The reclaiming-note was refnsed accordingly. That interlocutor describes the advocation as incompetent, proceeding on the decision of the First Division in the case of M'Farlane or Graham v. Montrose, and it was thus settled by a judgment of the whole Court that fifteen days from the time when an interlocutor allowing a proof had been pronounced was the time within which advocation was competent under the Act of Sederunt following the Judicature Act.

Advocation having been abolished by the Court of Session Act of 1868, I may refer to a case which occurred after the passing of that Act— Ritchie v. Ritchie, Oct. 22, 1870, 9 Macph. 43—which affords a direct authority to the effect that the appeal cannot bring up the interlocutor of 2d September.

Therefore the appellant must fall back on the interlocutor of 15th December 1880; and the ground on which he maintains that he is entitled to bring it under review is that it is a new allowance of proof. Now we must observe precisely what the procedure has been. After the original allowance of proof two other diets were successively fixed by the Sheriff-Substitute, and he thereafter pronounced this interlocutor—[reads interlocutor of 23d October as above]. In a note he says that he allowed the adjournment with some difficulty. The appellant appealed to the Sheriff, who did not pronounce an interlocutor till 30th November, when he dismissed the appeal. When the case came again before the Sheriff-Substitute on 15th December he assigned a new diet of proof. This was merely a matter of course; it was the right of the pursuer to have a proof. The defender had caused the delay. Mr Rhind referred to one case in support of his contention that this interlocutor of 15th December was a renewal of an order for proof. That was the case of Murphy v. M'Keand, 15th Feb. 1865, 4 Macph. 444. The question in that case was the competency of an appeal, not to this Court, but from the Sheriff-Substitute to the Sheriff. The case was sought to be made an authority in the present case on the ground that the words of the Act there in question were identical with those of the 40th section of the Judicature Act. I am willing to assume that they are the same; but what was the nature of the case of Murphy? It was a case in which the petitioner sought to have an interdict which would have the effect of stopping a diligence. The petitioner had been allowed great indulgence, and had done nothing, and when the Sheriff-Substitute pronounced the interlocutor appealed against the petitioner had lost his right to lead a proof. The interlocutor was a renewal of the proof previously granted, and that allowance was absolutely necessary. In my opinion I am reported to have used this expression—‘I have no doubt that an interlocutor reviving allowance of proof is the same as one allowing a proof;” to that expression I adhere. It is just because this interlocutor is not an allowance of proof or a renewal of an allowance of proof that I think the appeal is incompetent.

Lords Mure and Shand concurred.

Lord Deas was absent.