Scottish Court of Session Decisions

Spencer brought an action, under the Debts Recovery Act 1867, 30 and 31 Vict., c. 96, against Cumming, for a sum of £28, as the balance of an account for goods furnished.

The defender pleaded—“1. The account libelled is erroneous. Most part of the goods therein charged for were neither ordered nor got by the defender; and the sum sued for is not due. 2. The defender frequently asked a correct account from the pursuer's traveller, as well as from the pursuer's house, but they failed to furnish it till this action was raised, and thus, in any view, no expenses can be claimed.”

After a proof, neither party requesting a note of evidence to be taken, the Sheriff-substitute (Campbell) pronounced this interlocutor— “ Finds it proved, in point of fact, that the goods specified in the account libelled were furnished to the defender, and invoiced at the various times when they were received by him, at the prices charged for them in the account libelled: Therefore repels the defences, and decerns against the pursuer for the sum of £28, 6s. sterling, with £3, 16s. 7d. of expenses.”

The Sheriff (Davidson) adhered.

The defender appealed.

By section 9 of the Debts Recovery Act it is enacted that, unless required by either party, it shall not be necessary for the Sheriff to take a note of the evidence, or of the facts admitted by the parties; but upon such requisition, which shall only be competently made before any parol evidence has been heard, and not afterwards, he shall take such note, setting forth the witnesses examined, and the testimony given by each, and the documents adduced, and any evidence, whether oral or written, tendered and rejected, with the ground of such rejection, and a note of any objections taken, with admission of evidence, oral or written, allowed to be received, &.

Section 10 enacts that, where neither party has required the Sheriff to take such note, it shall not be competent to appeal against his judgment in so far as his findings in part are concerned, and such findings in part shall be final, and not subject to review by any Court.

Section 12 enacts that, in the event of an appeal, the Court shall hear the appeal without any written pleadings; but the Court may order the case to be reheard, and the evidence taken of new, or additional evidence to be taken, by the Sheriff or Sheriff-substitute.

Gloag, for appellant, contended that the Sheriff had wrongly refused to allow him to enter on a certain line of proof, with the view of proving payment, and that he ought now to be allowed to enter upon it.

Thoms for respondent.

The Court held (1) that the defence stated involved no plea of payment, and was necessarily so understood by the Sheriff; and (2) that the consequence of the parties having neglected or declined to ask for a note of the evidence was, that the Court could not now inquire into the grounds of the Sheriff's judgment. He might have admitted incompetent, or rejected competent evidence, but by the Statute the Court could now only look at the facts as they were found by him: new or additional evidence could not be allowed where there was no record of evidence at all.

Appeal dismissed.