Scottish Court of Session Decisions

By lease, dated 31st March and 1st April 1870, the defender let to the pursuer certain premises at Silvermills and a specified amount of steam power. In December last the pursuer raised an action in which he claimed damages from the defender for breach of a verbal contract which he said had been entered into in or about February between the parties, for the supply of heating steam to him for his machinery. The defender denied that any such contract had been made, and pleaded that if made it could only be proved by writ or oath. The Lord Ordinary ( Jerviswoode) and the Second Division in March last adopted this contention. The pursuer accordingly gave in a minute referring the whole matters dealt with by the Lord Ordinary's interlocutor to the defender's oath. The defender objected to the indefiniteness of the reference, and the minute was refused. On the request of the pursuer a minute was adjusted by the parties, and given in by the pursuer, but was withdrawn by him from process before any interlocutor was pronounced by the Court upon it. He thereafter gave in the following minute:—“The pursuer hereby refers to the oath of the defender whether he contracted to supply the pursuer with steam for heating purposes to be used in his business as a comb manufacturer in the premises at Silvermills, let to pursuer by the defender in terms of a written lease, dated 31st March and 1st April 1870.” The defender objected that the reference should be more specific, as the only contract alleged was anterior to the lease; and urged that the proper form for the reference would be in terms of the minute that had been adjusted, viz., “the pursuer hereby refers to the oath of the defender whether in or about the month of February 1870 the defender contracted to supply the pursuer with steam for heating purposes as set forth by the pursuer in the second and third articles of his condescendence.”

The Lord Ordinary pronounced the following interlocutor:—“The Lord Ordinary having heard counsel on the minute of reference by the pursuer to the oath of the defender, No. 12 of process, refuses to sustain the same in the terms therein stated; approves of a reference proposed by the defender, whereby the pursuer refers to the oath of the defender—‘Whether in or about the month of February 1870 the defender contracted to supply the pursuer with steam for heating purposes as set forth by the pursuer in the second and third articles of his condescendence;’ appoints,” &c.

The Court, considering the minute proposed by the pursuer too indefinite in the circumstances, directed him to amend his minute by incorporating a reference to his condescendence, and approved of the following minute:—“The pursuer hereby refers to the oath of the defender whether the defender contracted to supply the pursuer with steam for heating purposes as set forth by the pursuer in the second and third articles of his condescendence.” As the Lord Ordinary's interlocutor bore that it approved of a “reference proposed by the defender,” the Court recalled the interlocutor, and refused to make any finding on the matter of expenses of the reclaiming note.