Scottish Court of Session Decisions

Lord President—The first thing to be determined in this case is whether proof in replication was properly allowed to the defender. I cannot say that this process has been well conducted. From first to last the proceedings have been faulty, and the blame attaches equally to all parties concerned. The original allowance of proof was made in the interlocutor of the Sheriff Principal, of 4th June 1869, “Allows both parties a proof of their respective averments, in so far as not expressly admitted on record, and to the pursuer a conjunct probation.” It seems to me that under that order for proof it was the duty of the pursuer to lead evidence on all the points raised by him on record. He was not entitled to confine himself to the particulars of his own account. He had raised the question whether the defender had overcharged the items contained in his contra account, and if he did not lead proof of his averments on this point he was really leaving that proof till his own anticipated conjunct proof came to be led. Such a method of conducting his case was quite unjustifiable. It was depriving the defender of any reply to his proof of the real matter in dispute between them. The pursuer was quite wrong in not entering upon this subject in his proof in chief. Very naturally the defender was not very careful in leading evidence on this point, for he had nothing to meet but the pursuer's averments on record, which had not yet been supported. He contented himself with adducing two of his own people, and two men of skill. But then comes the pursuer's conjunct probation, in which, for the first time, he enters upon a very large question, judged at least by the mass of evidence. He goes minutely into a question of overcharge, and assails not only the material and the workmanship, as well as the price of the article supplied by the defender, but also the effectiveness of the article when put in use. And there, according to the terms of the Sheriff's interlocutor, the proof should have ended. But the Sheriff very naturally said, “Looking to the way in which the pursuer has conducted his proof, he has exposed the defender to a great disadvantage, and a proof in replication must therefore be allowed.” I cannot say that he was wrong in this conclusion. It was very wrong that the case should ever have come into such a position as to require a proof in replication. But under the circumstances I think the Sheriff was entitled to grant it.

We must therefore enter on a consideration of all the evidence that has been led.

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