Ferguson's Trustee v Reid
| Jurisdiction | Scotland |
| Judgment Date | 09 July 1931 |
| Docket Number | No. 84. |
| Date | 09 July 1931 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Sheriff of Lanarkshire.
ProcessAppeal from Sheriff CourtReview of prior interlocutorsAcquiescence by appellant in prior interlocutor and in subsequent procedurePersonal BarSheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), sec. 29.
The Sheriff Courts (Scotland) Act, 1907, enacts:Sec. 29. "An appeal shall be effectual to submit to review the whole of the interlocutors pronounced in the cause."
The pursuer in a Sheriff Court action pleaded that the defences were irrelevant. The Sheriff-substitute having sustained this plea, the Sheriff, on appeal, after amendment of the defences, repelled the plea, allowed a proof, and found the defender liable in expenses. The pursuer did not move for leave to appeal against this interlocutor. Thereafter the Sheriff-substitute fixed a diet for proof, and, by a subsequent interlocutor, he approved, of consent, of a specification of documents for the pursuer, approved of a specification for the defender, and granted the pursuer leave to appeal.
Held that the pursuer was not entitled in this appeal to submit to review the interlocutor of the Sheriff allowing a proof, in respect that he had acquiesced in and acted upon it.
John Hugh Neil, C.A., Glasgow, trustee under a trust-deed granted by William Pettigrew Ferguson, stockbroker there, brought an action in the Sheriff Court of Lanarkshire at Glasgow against W. G. Reid, Glasgow, concluding for payment of a sum of money.
The pursuer pleaded, inter alia:"(1) The defences are irrelevant." On 6th January 1930 the Sheriff-substitute (W. J. Robertson) sustained the pursuer's first plea in law, but allowed the defender to amend. On 25th February 1930 the Sheriff-substitute found the defences as amended irrelevant, and granted decree in favour of the pursuer.
The defender appealed to the Sheriff (A. O. M. Mackenzie), who, on 28th May 1930, allowed a further amendment of the defences. On 10th June 1930 the Sheriff refused leave to appeal against his interlocutor of 28th May, repelled the first plea in law for the pursuer, allowed a proof, found the pursuer entitled to expenses, and remitted the cause to the Sheriff-substitute. The pursuer did not move for leave to appeal against this interlocutor.
On 30th June 1930 decree was granted in favour of the pursuer for the taxed amount of the expenses. On 27th February 1931 the Sheriff-substitute (Bartholomew) fixed a diet for the proof. On 27th March 1931 he pronounced the following interlocutor:"Of...
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...by 2 and 3 Geo. V, cap. 28, sec. 3 and First Sched. 3 Eccles v. Brown & Co.UNK, 1955 S. L. T. 389. 4 Ferguson's Trustee v. ReidSC, 1931 S. C. 714. 5 Reference was made to Woods v. A. C. S. MotorsSC, 1930 S. C. 1035; Moore v. Stephen & SonsSC, 1954 S. C. 331; Colvin v. JohnstoneUNK, (1890) 1......
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