Co., Dundee Circuit, Sept. 16, 1868. See this case under section 4 of Small Debt Act, infra.

2 "The said first-recited Act" is the Small Debt Act of 1837.

2

exceeding

to final

&c.

24. It shall be competent, in any Cause exceed- In Cases ing the Value of Twenty-five Pounds, to take to review £25, Reof the Court of Session1 any Interlocutor of a Sheriff view limite sisting process, and any Interlocutor giving Interim Judgments, Decree for payment of Money, and any Interlocutor disposing of the whole Merits of the Cause, although no Decision has been given as to Expenses, or although the Expenses, if such have been found due, have not been modified or decerned for; but it shall not be competent to take to review any Interlocutor, Judgment, or Decree of a Sheriff, not being an Interlocutor sisting Process, or giving Interim Decree for Payment of Money, or disposing of the whole Merits of the Cause as aforesaid:6 and the Provisions of an Act passed in the Fiftieth Year of the Reign of His Majesty King George the Third, intituled, An Act for abridging the Form of Extracting Decrees of the Court of Session in Scotland, and for the Regulation of certain Parts of the Proceedings of that Court, and also the Provisions of an Act passed in the Sixth Year of the Reign of His Majesty King George the Fourth, intituled, An Act for the better Regulating of the Forms of Process in the Courts of Law in Scotland, are, in so far as inconsistent with this Enactment, hereby repealed: Provided always, that when any Interlocutor shall be brought under Review of the Court of Session, it shall be competent for that Court also to review all the previous Interlocutors pronounced in the Cause.

The cases cited under Section 22 may be usefully referred to.

1 The mode of taking causes to review of the Court of Session is now regulated by the Court of Session Act, 1868, section 65 to 80 inclusive. See infra.

2 In this case the Sheriff-Substitute gave decree for the pursuer.

The Sheriff, on appeal, recalled that interlocutor in hoc statu, and held that the process having fallen asleep, it required to be sisted till a summons of wakening had been brought. An appeal to the Supreme Court against this interlocutor was held competent, in respect that it did, in all practical effect, "sist process;" and it was held further, that by the operation of the 15th section, there is now no possibility of a Sheriff Court process falling asleep. Watson v. Stewart, Feb. 24, 1872, 10 Macph. 494, 44 Jurist 269. See this case under section 15.

A Sheriff-Substitute pronounced an interlocutor granting warrant on a judicial manager, appointed in a sequestration for rent, to make payment to the petitioner in the sequestration. On appeal, it was held that an interim warrant was of the nature of an interim decree, that it came within the policy and also the fair meaning of the statute, and that it might be appealed against. Observed This is the proper, and indeed the only form to effect a payment of money when the money is in the hands of an officer of Court. The Court will not give decree against one of its own officers, but will only order him to do what is necessary. Baird v. Glendinning, Oct. 16, 1874, 2 Rettie 25.

Suspension still competent.-A petition was presented to the Sheriff of Lanarkshire by Bartholomew, who alleged that Wilson, the suspender, had encroached on his coal-fields, and praying that he should be ordained to pump out the water, and do whatever was necessary to a survey being made of the working, &c. Counter allegations were stated of heavy loss which would be occasioned thereby. The Sheriff granted interim decree to the effect sought, and a charge was given to Wilson to implement it. Wilson then brought a suspension under the provisions of 1 and 2 Vict. c. 86, § 4. This section relates to a class of cases in which the note of suspension may be presented without a statement of facts and pleas in law, and is passed at once. This was held to be incompetent. But it was stated by the Court that the decision given did not in the least touch the question whether or not a suspension might have been obtained under section 6 of the same Act, which requires reasons to be stated and a note of pleas. Wilson v. Bartholomew, Feb. 4, 1860, 32 Jurist 266, 22 D. 693.*

*The following is an extract from the note to the interlocutor of the Lord Ordinary (Kinloch) in this case. The views therein expressed were not impugned by the Inner House.

"By the present suspension the complainer seeks to stay the effect of an interim decree of the Sheriff of Lanarkshire, and of a charge following on that decree. The interim decree was pronounced in a summary process, at the instance of the respondents against the complainer, and ordains the complainer to employ the pumps in a coal-pit belonging to him, so as to keep the water at a certain level. A charge to this effect has been given to

the complainer on the decree.

"The respondents object to the competency of this suspension, that it

It has been held (after consultation between the judges of both Divisions of the Supreme Court) that the 24th section of the Sheriff Court Act of 1853 gives express power to appeal to the Court of Session against an interim decree for payment of money, and that the leave of the Sheriff is not required, provision to that effect in the Act 50 Geo. III. c. 112, section 36, being inconsistent with, and therefore repealed by, the above section of the Sheriff Court Act. Lang v. Erskine, Dec. 18, 1872, 11 Macph. 229, 45 Jurist 153.

4 This was an action of removing under the 32d section of the Act. A preliminary objection was taken that the summons contained a narrative of facts for which the form given in Schedule (A) did not provide. The Sheriff sustained the objection and dismissed the action. Advocation was held competent, in respect that the judgment of the Sheriff, by turning the case out of court, in effect disposed of the whole merits of the cause. Whyte v. Gerrard, 30th Nov. 1861, 24 D. 102, 34 Jurist 58. See this case under section 32.

Where decree of absolvitor with expenses was pronounced in the Sheriff Court, Benn, the pursuer lodged a note of advocation against the judgment complained of, but failed to insist therein, and allowed protestation to be taken out. He thereafter paid the expenses decerned for by the Sheriff, and presented a second note of

66

is excluded by the 24th section of the Sheriff Court Act (16 and 17 Vict. cap. 80), which declares that it shall not be competent to take to review of the Court of Session' any interlocutory judgment in the Sheriff Court process, except in certain specified cases, in which the present is not comprehended. Irrespectively of any other answer which may be made to this objection, it appears to the Lord Ordinary that the complainer is not now seeking 'to take to review' an interlocutor, in the proper sense of the phrase. Properly speaking, the process is not one of review, but of stay of execution. The complainer, probably, would allow the interlocutor to remain unassailed till the end of the process, if nothing was proposed to be done on it. But he has been charged to fulfil it; and the suspension is intended to protect him against its enforcement by diligence. The Lord Ordinary is of opinion that the enactment in question does not deprive him of the privilege of doing 80. To hold the contrary would infer that, in every case whatever, the interim decree of a Sheriff must receive effect to whatever extent of ruin to property or infringement of personal liberty, without the possibility of protection."

"It was found in several cases that the remedy of suspension and interdict was competent to stay the effect of an interim warrant or decree ad factum præstandum, granted by, an inferior court, where suspension, considered as a mere process of review, was excluded

"If the complainer was right in holding that he was entitled to present a note without reasons, to be passed as a matter of course, it would follow that every interim decree whatever could be suspended at the pleasure of the party against whom it was pronounced. It appears to the Lord Ordinary that this view is as much in extremis as the opposite view of the respondents, that every such decree must receive an uncomplaining submission. The truth, as he thinks, lies between. The proper course to suspend the effect of such decree is to present a note with reasons, to be followed by answers; and the Lord Ordinary on the Bills will then exercise his discretion exactly as in other cases, as to whether execution is to be stayed or not."

advocation. It was held that this was competent, and that he was not bound by the previous proceedings. Benn v. Porret, March 3, 1868, 40 Jurist 278, 6 Macph. 577.

After a proof had been led in the Sheriff Court in Glasgow, and debate ordered, no appearance having been made for the pursuer at the debate, the Sheriff-Substitute, on the defender's motion, held the pursuer as confessed, and assoilzied the defender. The pursuer failed to appeal to the Sheriff within seven days, and he now appealed to the Court of Session. The Court reponed him on payment of £10, 10s. of expenses, expressed dissatisfaction with the irregularity of the procedure, and indicated an opinion that it was not contemplated by the Act that cases should be brought up for review from the Inferior Court, causa non cognita. Morrison v. Walker, June 24, 1871, 43 Jurist 491.

5 In a case in which the Sheriff-Substitute pronounced an interlocutor dismissing the action, on appeal to the Sheriff, he recalled the interlocutor of the Sheriff-Substitute, opened up the record, ordered condescendence and answers, and found the pursuer liable in expenses. An appeal to the Supreme Court against this interlocutor was held incompetent, in respect that it was not one "giving interim decree for payment of money" in the sense contemplated by the Act. Notman v. Kidd, Feb. 9, 1872, 9 Scot. Law Rep. 292.

6 Bontelleau, a French merchant, shipped a quantity of brandy to Dickson & Co., Glasgow, who, for alleged advances made by Mackenzie & Co., endorsed the bill of lading to them in security. Dickson & Co. then became insolvent. On arrival of the brandy at Glasgow, Bontelleau applied for interdict against its being delivered to others than themselves. Mackenzie made a like application. The petitions were conjoined, and after some proceedings in which the alleged advances by Mackenzie & Co. were denied by Bontelleau, the Sheriff, by interlocutor, ordered the brandy to be delivered to Bontelleau on his consigning £1520, being the amount of the alleged advances. Mackenzie & Co. advocated. Held that advocation was incompetent, the disputed advances by Mackenzie & Co., which formed at least a part of the merits of the cause, being still undisposed of. Bontelleau v. Mackenzie & Co., June 16, 1855, 27 Jurist 481. See the case of Wilson v. Bartholemew, supra, p. 34, and the remedy by way of suspension there indicated.

In a filiation case in which, after proof had been led on both sides, and judgment pronounced in the Sheriff Court against the defender, and the decree had been extracted and a change given, he brought a suspension, craving for a remit to the Sheriff to allow additional proof, on the grounds, chiefly, that the Sheriff-Substitute should not have allowed the pursuer's proof in replication without having given him the opportunity of adducing other witnesses. Suspension refused. It was observed by the Court:-The answer to the grounds of suspension stated is, that the suspender did not ask

for this supplementary proof in the proper court and at the proper time. He cannot be allowed now to make up for deficiencies of which he has been himself the sole cause. Crawford v. Kerr or Neilson, Dec. 4, 1861, 34 Jurist 60. See infra, the provisions of the Court of Session Act, 1868, section 72, since enacted.

Several members of a loan society brought a petition before a Sheriff Court under the 41st section of the Friendly Societies Act, (18 and 19 Vict. c. 63), on which the Sheriff pronounced an order calling a meeting of the members of the society, and allowing a proof. The respondents advocated. Held that advocation was excluded (1st) by the 41st section of the Friendly Societies Act, which excluded all appeal; and (2d) by the 24th section of the Sheriff Court Act, 1853. Johnston v. Duncan, May 20, 1862, 34 Jurist 481.

Cathcart, the pursuer, presented a petition to the Sheriff Court of Ayrshire for interdict against the defender, who was his tenant, to restrain him from carrying into effect a displenishing sale of the stocking and implements on his farm, which he had advertised. The Sheriff-Substitute granted interim interdict, which, on appeal, the Sheriff recalled, and remitted to the Sheriff-Substitute to proceed in the cause as might be just. The interim interdict had served its purpose of preventing the sale at the time advertised. The pursuer now appealed to the Supreme Court against the Sheriff's interlocutor. The appeal was held incompetent in respect that the whole merits of the cause had not been disposed of. Observed by the Court:-"Interim interdict might have been granted and taken off, and granted and taken off again and again, as the circumstances might necessitate; and therefore when the Sheriff recalled the interdict which had been granted, he did so after it had served its purpose of preventing the sale, and it would still have been competent to have replaced that interdict had circumstances required it, but the time for disposing of the merits would not have arrived till the record was made up.' Cathcart v. Sloss, Feb. 14, 1865, 3 Macph. 521, 37 Jurist 261. See proceedings and the dicta of the Bench on a petition for breach of interdict in Henderson v. Maclellan, May 23, 1874, 1 Rettie 920.

Shirra raised an action against Robertson in the Sheriff Court of Edinburgh for payment of £100, being the amount contained in a promissory note granted by him to the pursuer. Robertson stated defences and pleas, which the Sheriff-Substitute repelled, and found for the pursuer. The Sheriff recalled this interlocutor and allowed the defender a proof, before answer, of his averments by the writ or oath of the pursuer. The pursuer then appealed to the Supreme Court. It was held, after a consultation between both Divisions of the Inner House, that the interlocutor appealed against was not a final judgment as required by the 24th section of the Sheriff Court Act, so as to render an appeal competent. The appeal was accordingly refused. No expenses were given to either party, in respect that the objection to the competency had not been taken