Scottish Court of Session Decisions

In an action raised in the Sheriff Court at Glasgow by the Manchester and County Bank, Limited, against Edmund Cranston Moore, the Sheriff-Substitute ( Glegg) sustained a plea that the defences were irrelevant, and granted decree as craved.

The defender appealed to the Sheriff ( Gardner Millar), who on 9th November 1908 pronounced this interlocutor “The Sheriff, in respect the appeal was not insisted in at the Bar, dismisses the appeal.…”

The defender appealed to the Court of Session.

In the Single Bills the respondents objected to the competency of the appeal, and argued—It was incompetent to appeal against an interlocutor proceeding on a consent express or implied— Sutherland v. Thomson, December 4, 1905, 8 F. (H.L.) 1, 43 S.L.R. 115: Aird v. School Board of Tarbet, 1907 S.C. 22, 44 S.L.R. 26; Watson v. Russell, January 30, 1894, 21 R. 433, 31 S.L.R. 352. The appellant by his failure to insist in his appeal before the Sheriff had consented to the interlocutor against which he now presented this appeal.

Argued for the appellant—The mere fact that the appellant had not chosen to present an argument to the Sheriff was not equivalent to consent to the dismissal, or to statutory abandonment, of the appeal. As the interlocutor of the Sheriff was a final one, the appeal was competent, and the failure to argue his case before the Sheriff, though it might affect the question of expenses, could not bar the appeal.