Scottish Court of Session Decisions

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Cite as: [1874] ScotLR 12_101, [1874] SLR 12_101

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SCOTTISH_SLR_Court_of_Session

Page: 101↓

Court of Session Inner House Second Division.

[Sheriff of Roxburgh.

Tuesday, November 24. 1874.

12 SLR 101

Laidlaw & Sons

v.

Wilson & Armstrong.

Subject_1Process
Subject_2Jury Trial
Subject_3Issues
Subject_4Proof before Answer.

Process — Proof before Answer — Act 6 Geo. IV., c.120, § 40 — Court of Session Act, 1868 — Proof before one of the Judges of the Division — Remit to the Sheriff.
Facts:

In an action in the Sheriff-court the Sheriff allowed a proof before answer. The respondents appealed, and wished issues to be adjusted with a view to a jury trial. Held that, the case being one in which law and facts were both involved, the proper course was to allow a proof before answer.

Held ( dis. Lord Ormidale) that under Act 6 Geo. IV., c. 120, § 40, it was equally competent for the Court to remit the case for proof before the Sheriff, and to order the proof to be taken either before one of the Lords Ordinary or before one of the Judges of the Division.

Headnote:

In this action the question which came before the Court arose out of the interlocutors pronounced respectively by the Sheriff-Substitute ( Russell) of Roxburghshire, and by the Sheriff-Depute ( Pattison) on appeal. These interlocutors were as follows.—

“ Jedburgh, 27 th July 1874.—Having again considered the closed record, after having heard parties' procurators on the question of the relevancy of the action, before answer Allows to the parties a proof of their respective averments, and to the petitioners a conjunct probation: Grants diligence against witnesses and havers, and appoints a meeting with parties' procurators on the 30th inst., in order to fix a time for taking the proof.

Note.—While the essential facts are to a great extent disputed, the Sheriff-Substitute is of opinion the questions raised in the preliminary defences cannot be satisfactorily disposed of. On the face of the petition, read with reference to the admitted statements on the record, he does not find grounds on which the petition can be dismissed as incompetent. It is not unusual in similar petitions to crave alternatively either the delivery of a specific subject, or the payment of its value, as stated in the petition. The absence in the present case of any general claim for damages in the petition does not appear a good ground of objection to it. After the facts have been ascertained, it is quite possible that questions of some difficulty may arise for decision with reference to the cravings of the petition; but at present these cannot be determined. The petitioners appear entitled to obtain, with a view to their use in the proof, the documents described in the specification lodged by them, and the early production of them will greatly facilitate the proceedings at the taking of the proof. Unless the respondents produce these voluntarily, the Sheriff-Substitute will be prepared to grant a diligence for their recovery.”

“ Edinburgh, 8 th September 1874.—The Sheriff having considered the appeal and reclaiming petition for the respondents, answers for the petitioners, closed record, and whole process, Repels the plea of incompetency maintained by the respondents Repels also the plea of irrelevancy and insufficiency of the statements in the petition, so far as maintained to the effect of dismissing the action; and with this addition adheres to the interlocutor reclaimed against.

Note.—The plea of incompetency being in the Sheriff's opinion unfounded, and going to the very existence of the process, he considers it right that it should be repelled. The plea of irrelevancy generally is a defence on the merits, and it is not, except in some exceptional cases, advisable to dispose of it without a proof. It is generally best, as is done here, to allow a proof before answer. But when it is pleaded to the effect of craving a dismissal of the action, it falls within the same category as a plea of incompetency; and, so far as pleaded to that effect, requires to be repelled.

The Sheriff observes that the respondents, in answering certain articles of the petitioners' condescendence, not only deny the statements, but call them irrelevant. Thus—‘Not known, irrelevant
Page: 102↓
and denied.’ This is a bad and incorrect form of pleading, and ought not to be allowed. Irrelevancy is a matter of law, not an answer in point of fact, and it ought to have no place in the answer to statements in point of fact. It is at the same time illogical to deny a statement which is characterised as irrelevant. If it is irrelevant it is no matter whether it be true or not. One of the best tests of relevancy is to inquire whether the respondent is prepared to admit the statement objected to in point of fact. If he is not, it may safely be assumed that it is relevant.”

The respondents appealed by virtue of Act 6 Geo. IV., c. 120, § 40, and Court of Session Act 1868, § 73, to the Second Division.

The respondents (appellants) wished issues adjusted to try the cause by jury, but the petitioners respondents) wished the case to go to a proof, and stated that they would be perfectly satisfied to have the evidence taken either before one of the Judges of the Division or before the Lord Ordinary.

Judgment:

At advising—

Lord Ormidale—My Lords, I have felt some difficulty in this case and I should like to state from what it arises. It does so from a consideration of the case of Dennistoun v. Knox, 1871, 9 Macph. 739. There is no doubt that it is competent for either party to appeal for the purpose of getting the cause tried by jury, and then for the Court itself proprio motu, or at the instance of either party, to order a proof and quash the whole proceedings. This is quite settled. In this case neither party has maintained that the question is one of such a character as will enable it to be determined without some further investigation. I am entirely of opinion that there should be such investigation, and, what is more, that the investigation should take place without adjusting issues to go to a jury, because I think from the peculiar circumstances it would be very difficult to frame appropriate issues. I therefore would be inclined to think that a proof before answer would be the proper course.

But then, although coming to this conclusion, on the other hand, if we look at the case of Dennistoun, to which I have alluded, it seems to me to be doubtful whether it is competent that the proof be taken before any Judge here—it should rather go back to the Sheriff. If a proof is allowed before a Judge here, the case may be taken on appeal to the House of Lords—on an appeal, moreover, which would include fact as well as law, and the Act 6 Geo. IV., § 120, was intended to obviate such a result.

Lord Justice-Clerk—I should be very reluctant to think that where parties have come here asking for an investigation into the facts we must send them back again to the Sheriff. In Dennistoun's case the party who advocated for a jury trial turned round when he got into this Court and asked for a proof, and the Court very properly sent him back to the Sheriff-court. Here it would be very difficult to make any issue or issues that would bring out the point of the case, and I think your Lordships should order a proof before answer—to be taken before one of the Judges of this Division.

Lord Neaves—I quite agree. If I can satisfy my mind that a case, wherever it began, should be ried by a proof, I can see no impediment to that proof being taken before one of your Lordships if, in the opinion of the Court, justice in the case can be well satisfied by such a course. Section 40 of the Judicature Act, no doubt, was intended to relieve the House of Lords of appeals on matters of fact; but since that day there has grown up a great deal less repugnance to proofs taken here.

Lord Gifford—I am of the same opinion as your Lordship in the chair, and I do not think that there is anywhere anything to exclude the proposed course.

The Court ordered a proof before answer of the facts averred by either party, and appointed the same to be taken before Lord Gifford.

Counsel:

Counsel for Appellants (Respondents)— Solicitor-General (Watson), Q.C., and Smith. Agent— Adam Shiell, S.S.C.

Counsel for Respondents (Petitioners)— Dean of Faculty (Clark), Q.C., and Trayner. Agent— David Dove, S.S.C.

I., Clerk.
1874