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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Melrose v. Spalding [1868] ScotLR 5_614 (25 June 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0614.html
Cite as: [1868] ScotLR 5_614, [1868] SLR 5_614
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SCOTTISH_SLR_Court_of_Session
Page: 614↓
Court of Session Inner House Second Division.
v.
Facts:
Held, in accordance with a previous judgment of the Court, that a Sheriff-substitute is bound to pronounce findings in fact in his interlocutor.
This was an advocation from Roxburghshire of an action for a plasterer's account. The Sheriff-substitute decided against the advocator, and the Sheriff adhered. The advocator's counsel, in opening, observed that he had difficulty in impugning the interlocutor, as the Sheriff-substitute had not set forth findings in fact, as required by the Act of Sederunt 1851; but stated that he was ready to waive all objections to the form of the interlocutor.
Pattison and Campbell Smith for advocator.
Thomson and Keir for respondent.
At advising—
Lord Justice-Clerk—In this advocation, although a proof was led, the Sheriff has pronounced an interlocutor, without any findings in fact. This matter has been brought under consideration by counsel, and we are referred to a judgment of this Division, in 1866, in the case of the Glasgow Gas Light Company, where a remit was made to the Sheriff, before entering upon the merits of the advocation, to recal his interlocutor, and to pronounce one in the form prescribed by the Act of Sederunt, 15th February 1851. It does not appear from the report of that case whether the Court, in deciding it, had the 16th section of the Sheriff-court Act of 1853 specially brought under their notice; but we have ascertained that the Act of 1853 was carefully considered, and was held not to over-ride the Act of Sederunt. It having been held that the generality of the Act of Parliament was not inconsistent with the provision of the Act of Sederunt as to cases where proof was led, we must therefore hold that decision as an authority directly in point, and remit this advocation to the Sheriff.
The other judges concurred.
Solicitors: Agent for Advocator— James Somerville, S.S.C.
Agent for Respondent— David Milne, S.S.C.