Scottish Court of Session Decisions

This was an action in the Sheriff Court of Renfrew and Bute at Greenock, at the instance of John Maxton, part owner of the s.s. “Rebecca,” against James Bone, as managing owner or ship's husband of that ship, for an accounting and payment of £212, or such other sum as might be found to be due. An account having been lodged by the defender showing the pursuer's share of profits to amount to a certain sum (apart from other questions between them), the Sheriff-Substitute ( Nicholson) on 26th February 1886 pronounced this interlocutor—“Ordains the defender within seven days from this date to consign in the hands of the Clerk of Court the sum of £63, 17s. 9d., under certification: Further, having heard parties, before answer allows them a proof of their respective averments, and to the pursuer a conjunct probation.”

On appeal the Sheriff adhered.

The defender appealed to the Court of Session.

When the case appeared in the Single Bills the pursuer objected to the competency of the appeal on the ground that the interlocutor appealed against was not an interim decree for payment of money, but merely an order for consignation—Sheriff Court Act 1853 (16 and 17 Vict. cap. 80), sec. 24; Sinclair v. Baikie, Jan. 11, 1884, 11 R. 413; Mackenzie v. Balerno Paper Mill Company, July 12, 1883, 10 R. 1147.

The appellant contended that this was an interlocutor which so far as its practical effect went was an order on the defender to make payment. Section 24 was not to be rigorously construed— Bain v. Glendinning, Oct. 16, 1874, 2 R. 25.

Section 24 of the Sheriff Court Act 1853 provides that it shall not be competent to take to review any interlocutor “not being an interlocutor sisting process or giving interim decree for payment of money or disposing of the whole merits of the cause.”