Scottish Court of Session Decisions

Lord President—The proposal of the appellants is that the case shall be tried by one of the Judges of this Division or a Lord Ordinary without a jury. It is important to express our views on this application. The appellant could not be here, at this stage, except under § 40 of the Judicature Act. The object of the Legislature, throughout the section, was to prevent Sheriff-court cases being appealed to the House of Lords on matters of fact. The enactments to prevent this are very carefully framed. The leading enactment is that the interlocutors of this Court on proofs taken in the inferior Courts shall be final as to matters of fact, and accordingly that the Court shall specify in the judgment the facts on which it proceeds in the form of special findings. Then power is given to the Court to supplement the proof in the inferior Court. Then at the end of the section it is provided that if a litigant in the inferior Court desires to have the facts of his cause ascertained by jury, he shall be allowed to advocate as soon as an interlocutor has been pronounced allowing proof, but if he does not avail himself of that permission he is held to have waived his right of appeal to the House of Lords against any judgment on the facts which may afterwards be pronounced by this Court. The effect of granting the appellant's motion would be that any finding in fact would be subject to the review of the House of Lords. This would be a manifest evasion of the Judicature Act. I do not desire to decide this as a question of competency. We must give full and fair effect to § 40. The appellant must either go back to the Sheriff or take an issue for jury trial.

The other judges concurred.