Scottish Court of Session Decisions

This action was raised in the Sheriff Court at Glasgow by Willing & Company, merchants in Manchester, against Heys & Sons, calico printers in Glasgow. The pursuers concluded for declarator that they, as owners of a number of pieces of cloth specified, delivered by them to Mitchell, Johnston, & Company, printers in Glasgow, were entitled to delivery of the same from the defenders, in whose hands the pieces of cloth now were, on payment only to the defenders of any charges due to them for work done on said goods.

The defenders maintained that they should be assoilzied, in respect, inter alia, (1) that they were entitled, by custom of trade and course of dealing, to a general lien or retention over the cloth in question for a balance due by Mitchell, Johnston, & Company, who had stopped payment; (2) that the said goods were, in the knowledge of the pursuers, delivered to and received by the defenders on the footing that they were subject to such a general lien; and (3) that they received the said goods in the bona fide belief that they were the property of Mitchell, Johnston, & Company, and all along acted in that belief.

The Sheriff-Substitute having granted a proof before answer, the defenders appealed to the Court of Session under the 40th section of the Judicature Act, and on the case being called in Single Bills, moved the Court to remit it to the Outer House for proof, or alternatively to send it to trial by jury.

The pursuers opposed this motion, and asked the Court to remit the case back to the Sheriff for proof.

Argued for the defenders—It had been authoritatively established that when a case was brought here under the 40th section of the Judicature Act, it might be treated as a case which had originated in the Court of Session— Cochrane v. Ewing, July 20, 1883, 10 R. 1279. The course suggested by the defenders was therefore quite competent, and such a course had been followed by the Court against the wishes of one of the parties to a case— Laidlaw & Sons v. Wilson & Armstrong, November 24, 1874, 2 R. 148. The defenders might reasonably ask that this course should be followed, because the case being one of mixed law and fact was fitted for trial before a judge, and it was only fair that the defenders' right of appeal to the House of Lords on the facts as well as the law should be kept open. There was also a cognate case, in which they were defenders, pending before one of the Outer House Judges. The pursuers being Manchester merchants, no hardship to them was involved in the removal of the case from the Sheriff Court at Glasgow to the Court of Session.

Argued for the pursuers—Though the case of Cochrane v. Ewing decided that it was competent to deal with a case appealed under the Judicature Act as if it had originated in the Court of Session, it had never been the practice to take that course when it was opposed by the respondent— Bethune, &c. v. Denham, March 20, 1886, 13 R. 882. In Laidlaw's case it was the appellant who had objected to proof being taken before a judge in the Court of Session. The general practice when a case was unfitted for jury trial was to send it back to the Sheriff for proof— Chisholm v. Marshall, January 17, 1874, 1 R. 388. The present case was one of mixed law and fact, the chief question being one of law. It was therefore unfitted for jury trial, and the expedient course was to send it back to the Sheriff for proof.

At advising—