Scottish Court of Session Decisions

Thomas Crawford, farmer, Craigend, Slamannan, brought an action of damages against his landlord James Paton, Esquire, of Avonhill, for breach of contract, on the ground that he had failed to implement the obligations of the lease with respect to the upkeep of the farm buildings and the introduction of a proper water supply.

Upon 16th January 1895 the Lord Ordinary ( Stormonth Darling) closed the record and appointed issues to be lodged.

The defender reclaimed, and argued—The case should be tried by a judge without a jury. The Lord Ordinary had ordered issues without exercising his own discretion in the matter, on the ground that

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he had no option to do otherwise, looking to the case of Johnstone v. Hughan, May 22, 1894, 21 R. 777. No doubt that case was also founded on breach of contract, and was raised by a tenant against his landlord for failure to keep up the farm buildings, but there was no claim there analogous to the one here respecting the water supply, and it did not lay down the rule that all such cases must be tried by a jury. This was not one of the enumerated classes of actions which of necessity went to a jury. In actions such as the present it was for the judge to decide the appropriate mode of trial in each case. Further, the cases of Johnstone and of Willison v. Petherbridge, July 15, 1893, 20 R. 976, were appeals for jury trial brought from sheriff courts under the provisions of the Judicature Act 1825. Here the case had been raised in the Court of Session. It was founded on breach of contract and raised questions of law with regard to the rights and obligations between landlord and tenant, which could more suitably be determined by proof than by jury trial.

Argued for the pursuer—This was practically an action of damages. It could not be said that it was not suitable for jury trial, and as it was very similar to that of Johnstone, there was no reason why the course there adopted should not be followed here. The fact that there was an additional ground for damages here made no difference, although it might necessitate the adoption of two issues.

At advising—

Lord President—What the Lord Ordinary has done is to close the record and assign a day for the adjustment of issues. That seems a very natural course to take as a tentative step towards ascertaining by the test of the issues what is the quality of the case and whether it is suitable for proof or for jury trial.

The defender has reclaimed against this somewhat innocuous step, but he has explained to us that the Lord Ordinary proceeded on the ground that he was bound to send this case to jury trial in consequence of the decision in the case of Johnstone v. Hughan. That certainly was a case about farm buildings which had fallen into disrepair and it did go to jury trial, but that case rested upon a particular contract, and the question whether the landlord here is liable in damages to his tenant will fall to be considered by the Lord Ordinary when he has been brought to close quarters with the case by having the issues before him.

As to the second part of the case, that relating to the water supply, I am surprised that the defender, or for that matter the pursuer, should think that the case of Johnstone v. Hughan had any resemblance to the present one. The pursuer did not furnish us with any legal principle upon which this claim is rested, but the Lord Ordinary will be better able to judge on this also when he has the issues before him. It therefore seems to me that we should refuse this reclaiming-note. I do not think that the case of Johnstone v. Hughan has any binding effect of this kind, that every case of breach of contract must necessarily go to a jury. That will depend upon the circumstances of the particular case. I do not go back upon any thing said in Johnstone v. Hughan, either as regards the responsibility of the landlord or as to the proper procedure with regard to proof, but it may be well that this explanation should be made.