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THE

SCOTS LAW TIMES

REPORTS

1911

VOLUME 1

Edinburgh

PUBLISHED BY C. E. GREEN AT THE OFFICE

2 AND 4 ST GILES STREET

L18003

JUDGES OF THE COURT OF SESSION DURING THE
PERIOD OF THE REPORTS IN
IN THIS VOLUME.

FIRST DIVISION.

LORD PRESIDENT.

THE RIGHT HON. LORD DUNEDIN.

THE RIGHT HON. LORD KINNEAR, THE HON. LORD JOHNSTON,
AND THE HON. LORD MACKENZIE.

LORD JUSTICE-CLERK.

SECOND DIVISION.

THE RIGHT HON. SIR JOHN H. A. MACDONALD, K.C.B.

THE HON. LORD ARDWALL, THE HON. LORD DUNDAS,

AND THE HON. LORD SALVESEN.

LORDS ORDINARY.

THE HON. LORD GUTHRIE (C. J. GUTHRIE).

THE HON. LORD SKERRINGTON (W. CAMPBELL).

THE HON. LORD CULLEN (W. J. CULLEN).

THE HON. LORD DEWAR (ARTHUR DEWAR).

THE HON. LORD ORMIDALE (GEORGE L. MACFARLANE).

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REPORTS

1911, 1 SCOTS LAW TIMES

REPORTED BY

J. W. FORBES, ESQ., M.A., LL.B.; W. A. RAMSAY, Esq., B.A., LL.B.;

J. S. MACKAY, ESQ., M.A., LL.B.; R. HENDRY, ESQ., M.A.; D. OSWALD DYKES, Esq., M.A., LL.B.; J. W. MORE, ESQ., B.A., M.A.; A. N. SKELTON, Esq., B.A.; MARCUS DODS, Esq., B.A.; AND W. A. FLEMING, ESQ., M.A., LL.B., ADVOCATES.

NOTE.-Cases in this volume may be cited 1911, 1 S.L.T.
Morgan v. Dixon, 1911, I S.L.T. 16.

Thus

REPORTS

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This was an action raised in the Sheriff Court at Dumbarton by Messrs A. E. Abrahams, Ltd., advertising contractors, Stratford, Essex, and others, against William Campbell, junior, furniture dealer, Dumbarton. The claim of the pursuers in the initial writ was for

payment of the sum of £43, 16s. sterling, being amount due in terms of agreement executed by defender and dated 1st March 1907, for advertising on six glass slides on the electrical cars running at Dumbarton for 146 weeks commencing 11th June 1907, at the cost of 1s. per week each glass, viz. 6s. per week in all, under reservation of pursuers' rights to any and all sums yet to become due by defender under said agreement.

By a minute of restriction dated 4th May the
pursuers restricted the sum concluded for to
£39, 188. sterling. The agreement referred to
was in the following terms:

"I, Wm. Campbell, Jr., do hereby agree to take
six glass slides on the electric cars running at
Dumbarton, for a period of five years, com-
mencing from the day the advertisement is
first exhibited, at the cost of one shilling per
week each glass.

On 26th July 1910 the Sheriff - Substitute (Blair) came to certain findings in fact and decerned against the defender for the said sum of £39, 18s. The defender appealed to the Sheriff (Lees).

On 22nd October the Sheriff pronounced an interlocutor, by which, after certain findings in fact, he found as matter of law that the pursuers were not in titulo to demand implement by the defender of a contract which they had ceased to fulfil, but only reasonable compensation for the amount of advertising display they had obtained for defender's advertisement, and that the sum of £18 would be such reasonable remuneration.

The pursuers appealed to the Court of Session. On 30th November, in Single Bills, the respondent objected to the competency of the appeal. The Sheriff Courts (Scotland) Act 1907 enacts: Section 3 (i) summary clause includes: (1) Actions . . for payment of money exceeding twenty pounds and not exceeding fifty pounds.

Section 8.

In a summary cause if the Sheriff, on appeal, is of opinion that important questions of law are involved, he shall state the same in his interlocutor, and he may then, or within seven days from the date of his interlocutor, grant leave to appeal to a Division of the Court of Session on such questions of law, but otherwise the judgment of the Sheriff shall be final.

Section 28. Subject to the provisions of this Act it shall be competent to appeal to the Court of Session against a judgment of a Sheriff-Substitute or of a Sheriff, but that only if the value of the cause exceeds fifty pounds, and the interlocutor appealed against is a final judgment, or is an interlocutor.

(C) Against which the Sheriff or the Sheriff-Substitute, ex proprio motu, or on the motion of any party, grants leave to appeal. . . .”

Argued for Respondent: The value of this cause as stated in the initial writ was less than £50; the cause was therefore a summary cause by the Sheriff Courts (Scotland) Act 1907, section "Accounts quarterly, at Stratford, London. 3 (i) (1). There were no important questions of The contractor to supply the advertise-law to justify an appeal under section 8. Nor had the Sheriff given leave to appeal (section 28 (C)). The appeal was therefore incompetent.

ments and fix same."

The ground of defence was that the pursuers had failed to fulfil the terms of the contract.

Argued for Appellants: On the face of the

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initial writ it was obvious that the value of this cause was not to be measured merely by the amount concluded for in the initial writ. The total value of the contract was £78, and that value was involved, though the actual sum now sued for was less than £50 (Duke of Argyll v. Muir, 1910 S.C. 96, 1909, 2 S.L.T. 347; Stevenson and Others v. Sharp, 1910 S.C. 580, 1 S.L.T. 275).

The Court repelled the objection to the competency, and appointed the case to be put to the roll.

The Lord President-In this case A. E. Abrahams, Ltd., a firm of advertising contractors, sue William Campbell, furniture dealer, Dumbarton, for payment of a certain sum alleged to be due in respect of an advertising contract; and in the initial writ the claim or demand of the pursuers is "for payment of the sum of £43, 16s. sterling, being amount due in terms of agreement executed by defender and dated 1st March 1907, for advertising on six glass slides on the electrical cars running at Dumbarton for 146 weeks commencing 11th June 1907, at the cost of 1s. per week each glass, viz. 6s. per week in all, under reservation of pursuers' rights to any and all sums yet to become due by defender under said agreement."

The defence is a denial that the pursuers have truly performed their part of the agreement. Now, to say that pursuers have not truly performed their part of a bargain is an assertion which may mean various things, and here it does not mean that they did not insert the advertisements in question, but that they did not place them on cars which truly corresponded to the cars mentioned in the contract. The contract was an agreement to take six glass slides on the electric cars running at Dumbarton, and the defence is that, owing to a change in the arrangements, the cars upon which the advertisement was confessedly put were not, in the true sense of the words, electric cars "running at Dumbarton."

The real controversy, accordingly, between the parties is the question-What is in law the true construction of the contract? and one sees that though the sum sued for is under £50, the real question is not as to this sum of less than £50, but as to the meaning of a contract which extends over a period of five years and obviously involves a much larger sum than £50. That being so, the question before us is whether (the Sheriff having given judgment) an appeal to this Court is competent.

It is urged that no appeal is competent on the ground that this is a summary cause, and under section 8 of the Sheriff Courts (Scotland) Act 1907 an appeal in such causes is competent only on questions of law and where leave has been given by the Sheriff to appeal; and the Sheriff has not given leave here. The section, however,

bell.

30, 1910.

on which the matter really turns is the definition 1ST DIV. clause, section 3 (i) (1), which defines summary Abrahams cause as including actions "for payment of money v. Campexceeding twenty pounds and not exceeding fifty pounds, exclusive of interest and expenses." Now November I do not think that this is an action for payment of money alone, and I think that a summary cause in the sense of that section must mean an action for payment of money and nothing else. I am of opinion, therefore, that it follows by analogy that there is involved the long series of decisions we have given on the question of value, namely, that the true value cannot always be found on the face of the conclusions of the summons or other writ. Accordingly, I am of opinion that this is not properly a summary cause, and that under section 28 of the Sheriff Courts Act the appeal to this Court is competent. Lord Kinnear.—I agree.

of

Lord Johnston.-I also agree. I think the present case is governed by the case Stevenson v. Sharp (1910 S.C. 580), to which it is very similar. The ground of my opinion in that case equally, I think, applies here. That action was founded upon a letter of obligation, and what I said there was this: "When the letter on which this claim is founded is looked at, it is at once apparent that it governs not merely the pursuer's claim of interest for the half-year ending Martinmas 1908 but that for subsequent half-years. The pursuer cannot succeed in her claim without obtaining a favourable interpretation of the letter of obligation founded on." And on such interpretation more depended than the mere sum sued for in the action. In the present case I think the pursuers cannot get decree in their favour without obtaining a favourable interpretation of the contract on which they sue. And equally more turns on that interpretation than the mere sum sued for in the action. I am of opinion, therefore, that the two cases are on all fours, and that the decision in Stevenson v. Sharp should be followed here.

Lord Mackenzie.-I agree with your Lordship in the chair.

Counsel for Pursuers and Appellants, Wilton ; Agents, Henderson & Mackenzie, S.S.C.-Counsel for Defender and Respondent, J. R. Christie; Agents, Simpson & Marwick, W.S. M. D.

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