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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sommerville v. Magistrates of Lanark [1866] ScotLR 1_155 (10 February 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0155.html Cite as: [1866] SLR 1_155, [1866] ScotLR 1_155 |
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Page: 155↓
Circumstances in which an advocation ob contingentiam held incompetent.
This is a question as to the competency of an advocation ob contingentiam of an interlocutor of the Sheriff of Lanarkshire in an action of sequestration for rent, which was reported by the Lord Ordinary on the bills. The objections were (1) that the interlocutor is a final judgment, and advocation ob contingentiam was excluded by the decision in the case of Hamilton, 11th February 1848 ( 10 D. 678; (2) that there is no contingency; and (3) that advocation ob contingentiam is excluded by section 24 of the Sheriff Court Act, 16 and 17 Vict. c. 80, which excludes review of all interlocutors of the Sheriff “not being an interlocutor sisting process or giving interim decree for payment of money, or disposing of the whole merits of the cause;” and at the same time repeals the provisions of the Act 5th George III. c. 112, and of 6th George IV. c. 120, in so far as inconsistent with the above enactment. In the case of Harrington v. Richardson, 20th January 1854 ( 16 D. 368), it was held that this provision of the Sheriff Court Act did not exclude an advocation with a view to jury trial under section 40 of the Judicature Act.
The action to which the present was said to be contingent is one of reduction of certain decrees pronounced by the Sheriff in regard to previous rents of the same subjects, and the same defences which were stated in these actions were applicable to the one now proposed to be advocated.
The Court, after hearing counsel for the advocator, refused the advocation as incompetent.
The Lord President said—I think this proceeding is not competent. The position of the case is this—A sequestration has been awarded, and a warrant of sale granted by the Sheriff. It is said that this is a final judgment, and that the advocation is not brought for the purpose of obtaining review; but if it is not brought for this purpose it has no meaning. It is not a suspension of execution. Lord Rutherfurd, in the case of Harrington, said that the object of advocating ob contingentiam was that two cases relating to each other might be heard together, but he did not say reviewed together. Section 40 of the Judicature Act is a very peculiar one. The object of it is not to obtain a judgment, but to collect materials for a judgment by means of a jury trial. That, therefore, is held not to be precluded by the Sheriff Court Act. But that is not the case here. What is here proposed is to obtain review by means of a form of process in which no caution is required of a judgment, review of which can only be obtained on caution being found.
Counsel for Advocator— Mr Patton and Mr W. N. M'Laren. Agent— Mr W. Mackersy, W.S.
Counsel for Respondents— Mr D. Mackenzie. Agents— Messrs Maconochie & Hare, W.S.
