( Ante, vol. xviii. p. 349.)
Subject_Appeal — Competency — 6 Geo. IV. c. 120, sec. 40 — Findings in Fact.
Terms of an interlocutor which were held to import a judgment upon a matter of fact, and consequently under the Judicature Act not to be capable of being carried by appeal to the House of Lords.
Opinion (per Lord Watson) that parties are not entitled to ask the House of Lords as a matter of right to send a case back to be heard again in the Court of Session on the ground that they did not at the former hearing there insist on facts on which it was then open to them to have insisted.
This case was reported in the Court of Session of date February 25, 1881, ante, vol. xviii. p. 349, 8 R. 518.
The Lords of the Second Division, in affirming the judgment of the Sheriff, pronounced this interlocutor:—“Find that on 23d May 1879 the pursuer's steamship ‘Krishna,’ being then insured in terms of the policy founded on, and the defender (respondent) being an insurer to the extent of £50, was stranded during a violent storm on the coast of Hindostan, between Panjim and Bombay: Find that on or about the 7th day of June following the pursuer (appellant) intimated to the underwriters in said policy that he abandoned the ‘Krishna,’ and claimed as for a total loss: Find that the underwriters did not accept the abandonment: Find that the pursuer brought this action for indemnification of his loss upon the 1st day of October 1879: Find that shortly after the stranding of the ‘Krishna’ the south-west monsoon began upon the coast of India, and continued till the end of September or beginning of October, and that during its continuance it was impossible to get the ‘Krishna’ afloat; but find that there was on the 7th of June and continued thereafter to be a reasonable prospect of her being got off the sandy shore on which she lay without greater expense than a prudent uninsured owner would reasonably incur: Find, therefore, that there was not at that date a constructive total loss of the ship: Therefore dismiss the appeal, affirm the judgment of the Sheriff appealed against, and decern.”
The pursuer appealed to the House of Lords, but the defender maintained that in terms of the 4th section of the Judicature Act the interlocutor, since it contained a judgment on a matter of fact only, was not subject to appeal.
The appellant, in support of the competency of the appeal, argued, first, that this was a mixed question of law and fact; and second, that the findings in fact were incomplete, and should be rectified. He cited Hudson v. Harrison, 3 B. & B. 97; Provincial Insurance Company of Canada v. Ledne, L.R., 6 P.C. 224; Peck v. Merchants Insurance Company, 3 Mason 27; Phillips on Insurance, vol. ii., 5th ed., 375; Moss v. Smith, 9 C.B. 94; Irving v. Manning, 6 C.B. 392; Mackay v. Dick & Stevenson, 18 SLR 387; 8 R. (H. of L.) 37.
The respondent was not called upon.
At delivering judgment—
The House affirmed the interlocutor appealed from, and dismissed the appeal with costs.
Counsel for Appellant— Butt, Q.C.— Pollard— Guthrie. Agents— Sym & Holman— Maconochie & Hare, W.S.
Counsel for Respondent— Cohen, Q.C.— Hollams. Agents— Hollams, Son, & Coward— J. & J. Ross, W.S.