Scottish Court of Session Decisions

This was an action at the instance of James Cochran, Barcosh, Beith, against Gabriel Dunlop, cattle-dealer, Stewarton, and Patrick Dunlop, auctioneer, Altonhill, near Kilmaurs, for reduction of an award and relative account, and also of certain interlocutors in the Sheriff-court. The action was brought under the following circumstances. In December 1869 the pursuer raised an action in the Sheriff-court at Kilmarnock against the defender Gabriel Dunlop, for the sum of £100, 10s. 5d., in terms of account appended to the summons.

In this action the defender stated the following defence, namely,—£42, the last item in the account, was denied. The rest of the account, amounting to £58,10s., was admitted, but it was pleaded that there fell to be deducted from that sum the price of four cows sold by the defender to the pursuer in June 1866, at £28; and that he had further paid £20 to account, thus leaving due a balance of £10, 10s., which the defender averred he had all along been willing to pay, and then consigned. Having closed the record, the Sheriff-Substitute allowed a proof, but before the commencement of the proof the parties entered into a joint minute, which is dated the 9th March 1870, and was signed by pursuer and defender. By said minute the parties agreed that the first items of the account sued for, and the defences thereagainst, should be referred to Mr Patrick Dunlop, auctioneer, Altonhill, Kilmaurs, with power to examine the defender; call both parties and witnesses before him and dispose of the question of expenses. As to the remaining item of the account, for £42, evidence was led before the said Sheriff-Substitute. The said Patrick Dunlop accepted the reference, and had various meetings with the parties, at which the questions submitted to his determination were duly explained. On the 22d July 1870, he pronounced the following award:—“Having heard both parties on this case, and examined the papers and accounts relative thereto, I find that the four first items in the account sued for are admitted by the defender.

amounting to.	£58	10	0
I am also satisfied that the defender, in payment of that sum, paid in cash, 6th January 1865,.	£20	0	0
Sold to the pursuer four cows, valued, at June 1866,…	28	0	0
And one cow, June 1866, bought on commission forand delivered to pursuer,	9	10	0
	57	10	0
Balance due by defender,	£1	0	0

I am further of opinion that the expenses connected with the above items should be paid by the pursuer and defender in equal portions.”

Then, on the 5th October 1870, the Sheriff-Substitute pronounced an interlocutor, in which, on a review of the record, proof, productions, and whole process, he found, in terms of the foregoing award, that there was a sum of £1 sterling due to the pursuer by the defender under the first four items of the account appended to the summons, and that the costs of the reference were to be paid by the pursuer and defender in equal portions; found, as regarded the remaining item of £42, under date the 6th of December 1866, in the account sued for, the pursuer had failed to prove that the four fat cows in question were sold by the defender, or by any person employed by him, or for whom he was responsible; therefore assoilzied the defender from the conclusion of the action; found the pursuer liable in expenses; allowed the defender to give in an account, and remitted the same, when lodged, to the auditor to tax and report, and decerned.

The Sheriff-Substitute thereafter pronounced the following interlocutor:—

“ Kilmarnock, 5th January 1871.—The Sheriff-Substitute having resumed consideration of the process, with the Auditor's report on the amount of taxed expenses, and having heard parties' procurators thereon, sustains the defenders' objections to said report. Finds the conclusions of the action being upwards of £100, the taxation must proceed upon the highest scale allowed by the table of fees. Therefore decerns against the pursuer for £14,16s. 9d. sterling of taxed expenses.”

The pursuer then raised this action of reduction of the award and interlocutors above mentioned, and which also called for production of the award, with relative account and interlocutor of the Sheriff. The pursuer pleaded, inter alia, that “the said award and relative statement of account were null and reducible in respect they are ultra vires compromissi,” that they were “altogether false and erroneous, pronounced under essential error as to the true state of the accounts between the parties and the meaning of the reference, and without due inquiry, and therefore ought to be reduced and set aside.” In support of these pleas the pursuer averred that the defender, having admitted the items in the account sued for, amounting to £58,10s., the only question submitted to the referree related to the two sums of £28 and £20, for which the defender claimed credit. That the statement of the defender that the £28 was the price of four cows, sold in June 1866, and unpaid, was untrue. That as to the other £20, no particulars were given, no receipt was produced, and no reason assigned for the defender being entitled to credit therefor; and further, that the said arbiter was not entitled to allow any deduction to the defender for the sum of £9, 10s. which was disputed by the pursuer, was not claimed in the defences, and was not embraced in the said reference. In respect to the interlocutors of the Sheriff-Substitute, the pursuer pleaded that they were “null and reducible in respect they were founded upon and gave effect to an award which was itself null, and were pronounced in absence of the pursuer.”

The defender pleaded, inter alia, that “the pursuer had stated no relevant or tenable grounds of reduction; that as the interlocutors sought to be reduced were pronounced in foro, and in an existing process, they were final, and not subject to

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review;” and their 8th plea of law (mentioned in Lord Ordinary's interlocutor) was that “the defenders were not bound to satisfy the production of any of the writs called for, and the action should be dismissed, with expenses.”