Scottish Court of Session Decisions

Donald Macgilp was appointed schoolmaster of the parochial school of Kilchoman, Islay, on 27th October 1869. After the passing of the Education (Scotland) Act 1872 the school was under the authority of the school board of the parish. By virtue of his appointment the pursuer was entitled to receive, inter alia, payment of the fees exigible for the scholars taught in the school. In August 1890 the school board, in pursuance of the Local Government (Scotland) Act 1889, resolved to remit entirely as from 1st October 1889 the fees in use to be charged for the scholars attending the school. Upon 13th February 1890 the board fixed the compensation to which the teacher was entitled in lieu of school fees at £23, 15s. 8d. per annum.

Macgilp brought an action in the Sheriff Court to have it declared that the amount of compensation due to him should be fixed at £45 sterling per annum.

Upon 1st November 1890 the Sheriff-Substitute ( Shairp) pronounced this interlocutor—“Appoints the pursuer to lodge in process, within fourteen days, a minute stating in detail the arrears referred to in article 6 of his answers to the defenders' statement of facts, and all arrears due for the five years ending Whitsunday 1889 received up to the date of lodging the minute, with the dates of payment, and the names of the parties from whom received, also the fees of the children who paid in kind.”

The pursuer appealed, and upon 4th February 1891 the Sheriff (Irvine) pronounced this interlocutor—“Having considered the appeal for the pursuer against the interlocutor of the Sheriff-Substitute, dated 1st November 1890, reclaiming petition for the pursuer, answers thereto for the defenders, and whole process, sustains the appeal, Recals the interlocutor appealed against: Allows to the pursuer a proof of his averments, and to the defenders a conjunct probation: Remits to the Sheriff-Substitute to take said proof; meantime reserves all questions of expenses.

“ Note.—The Sheriff sees nothing either in

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the Education (Scotland) Act 1872 (35 and 36 Vict. c. 62), or in the Local Government (Scotland) Act 1889 (52 and 53 Vict. c. 50), on both of which statutes the pursuer founds, to bar the competency of this appeal: and Mr Dove Wilson, under the head of appealable interlocutors (3d ed.), p. 318, lays it down that in any ordinary action appeals may be taken either against interlocutory judgments or against a final judgment.

On the merits of the cause it strongly appears to the Sheriff that the fairest course would be to allow a proof in which the whole facts of the case may be brought before the Court, so that a final decision may, it is hoped, be at once obtained.”

The defenders appealed, and argued—The appeal to the Sheriff from the Sheriff-Substitute was incompetent; therefore the defenders had the right to appeal to the Court of Session in order to have the interlocutor pronounced upon an incompetent appeal recalled, under the Act 50 Geo. III. cap. 112. The Court of Session had always jurisdiction to correct a judgment pronounced by an inferior judge in a case where he has no jurisdiction. There was no appeal to the Sheriff on any part of the process, therefore his interlocutor ought to be recalled, and that of the Sheriff-Substitute reverted to. It had been decided that when an Act of Parliament enacted that the decision of the Sheriff of the county was final, an appeal from the Sheriff-Substitute to the Sheriff on a point of procedure was incompetent— Bone v. School Board of Sorn, March 16, 1886, 13 R. 768; Fleming v. Dickson, December 19, 1862, 1 Macph. 189; Leitch v. Scottish Legal Burial Society, October 21, 1870, 9 Macph. 40; Harrington v. Richardson, January 20, 1854, 16 D. 368.

The respondent argued—The Sheriff was the final judge of this matter under the statute, and this interlocutor was not appealable to the Court of Session. The case of Bone was really decisive of the question. There an interlocutor was appealed to the Sheriff which did not determine the merits of the case. The Sheriff, however, although the appeal was incompetent, disposed of the whole matter, and it was held there was therefore no appeal to the Court of Session, as the matter had been finally settled in the Inferior Court. It was not necessary for this case to argue that an appeal to the Sheriff on points of procedure was incompetent, but if he was able to dispose of the whole merits without an appeal to the Court of Session being competent, still more was he able to dispose of a point of procedure. There were dicta to the effect that if a case was to be decided in the Sheriff Court, the ordinary modes of procedure were all available to the parties— Magistrates of Portobello v. Magistrates of Edinburgh, November 9, 1882, 10 R. 130.

At advising—