Scottish Court of Session Decisions

By the Act of Sederunt of 15th February 1851 it is enacted that “When in causes commenced in any of the courts of the sheriffs or of the magistrates of burghs or other inferior courts, matters of fact shall be disputed, and a proof shall be allowed and taken according to the present practice, the sheriffs or other judges in the said courts shall in their judgment proceeding upon such proof distinctly specify the several facts material to the case which they find to be established by the proof, and express how far their judgment proceeds on the matter of fact so found or on the matter of law, and the several points of law which they mean to decide.”

By section 13 of the Sheriff Court (Scotland) Act (16 and 17 Vict. cap. 80) it is enacted—“In all cases where a sheriff-substitute or sheriff pronounces an interlocutor disposing of a dilatory defence, or sisting process, or deciding on the admissability of evidence, or any plea of confidentiality, or giving any interim decree or disposing in whole or in part of the merits of the cause, it shall be the duty of such sheriff-substitute or sheriff, as the case may be, to set forth in the interlocutor, or in a note appended to and issued along

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with it, the grounds on which it has proceeded.”

Angus Mackay, farm servant, raised an action in the Sheriff Court at Dornoch against John Mackenzie, farmer, for payment of (1) £34 as the amount of wages, &c., due to him, and (2) £20 damages.

After proof the Sheriff-Substitute ( Mackenzie), by interlocutor dated 23rd January 1894, pronounced certain findings in fact, and decerned against the defender for payment to the pursuer of (1) £33, 15s., and (2) £5.

On appeal the Sheriff ( Johnston) on 14th April 1894 pronounced this interlocutor:—“Having considered the minutes of debate for the parties, proof, record, and whole process, Recals the interlocutor of the Sheriff-Substitute of 16th January 1894, and assoilzies the defender from the conclusions of the summons,” &c.

The pursuer appealed.

When the appeal came on for hearing, counsel for the pursuer drew the attention of the Court to the fact that the Sheriff's interlocutor contained no findings in fact as required by the Act of Sederunt of 15th February 1851, and was therefore bad in form— Glasgow Gaslight Company v. Glasgow Working-Men's Total Abstinence Society, July 11, 1866, 4 Macph. 1041, and Melrose v. Spalding, June 25, 1868, 6 Macph. 952.

Argued for defender—The case of Caird v. Sime, June 13, 1887, 14 R. (H. of L.) 37, showed that although the Sheriff ought to have inserted in his interlocutor findings in fact, yet the Court was entitled, if both parties assented, to hear the appeal as if the interlocutor was correct in form.

At advising—