Brotherston v Livingston
| Jurisdiction | Scotland |
| Judgment Date | 15 October 1892 |
| Date | 15 October 1892 |
| Docket Number | No. 1. |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Process—Appeal—Competency—Sheriff Court Act, 1853 (16 and 17 Vict. cap. 80), secs. 22 and 24.—
A Sheriff Court action prayed for decree against L. and S. conjunctly and severally, or severally, for a sum which, with interest, was under £25, and also for decree against S. for £1, 1s. 10d., which brought the total sum sued for, with interest, over £25. The Sheriff assoilzied L. and allowed a proof against S. The pursuer appealed. Held that the appeal was incompetent, on the ground that if the pursuer's claim for £1, 1s. 10d. was part of the cause in which L. was interested the cause was not exhausted, and that if that claim did not form part of the action against L., the action was one for less than £25.
On 27th April 1892 William A. S. Brotherston, Carlethan, Lasswade, brought an action in the Sheriff Court at Edinburgh against Josiah Livingston, 4 Minto Street, Edinburgh, and John Sime, Greenbank, Lasswade, praying for ‘decree against the above-named defenders ordaining them, conjointly and severally, or severally, to pay to the pursuer the sum of £22, 8s. sterling, with interest thereon at the rate of £5 per centum per annum, from the 22d day of December 1890 till payment; and to grant a decree against the above-named defender, John Sime, ordaining him to pay to the pursuer the sum of £1, 1s. 10d. sterling, with interest thereon at said rate from said date till payment.’
The ground of action was that the defender Livingston having undertaken to bind the defender Sime to take over at a valuation the manure, &c., in the garden of Greenbank (of which the pursuer had been tenant under Livingston until Martinmas 1890, and of which Sime then became tenant), was liable in the sum of £22, 8s., with interest, if he had failed so to bind Sime, and that Sime was liable in the said sum if he had been so bound, and also in the sum of £1, 1s. 10d. as the value of certain articles belonging to the pursuer, of which Sime was alleged to have got possession.
On 24th June 1892 the Sheriff (Blair) on appeal pronounced this interlocutor:—‘Finds that the pursuer's averments are not relevant or sufficient to support the prayer of the petition in so far as directed against the defender Josiah Livingston; … assoilzies the said defender Josiah Livingston from the conclusions of the prayer of the petition: Finds said defender entitled to expenses; allows an...
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