Scottish Court of Session Decisions

Thomas Conroy, labourer, Partick, raised an action of damages in the Sheriff Court at Glasgow against A. & J. Inglis, shipbuilders, Partick, on account of injuries sustained by him, as he averred, while in their employment, and in consequence of their fault.

Upon 5th April 1895 the Sheriff-Substitute ( Spens) before answer allowed the

Page: 497↓

pursuer a proof of his averment that the relation of employer and employed subsisted between himself and the defenders at the time of the accident, reserving thereafter to allow further proof that might seem necessary or advisable.

The pursuer appealed to the Court of Session for jury trial under the 40th section of the Judicature Act.

The defenders argued that the appeal was incompetent. The interlocutor of the Sheriff-Substitute did not allow a proof of all the averments on record, but only of one small preliminary question. The determination of that question might render inquiry into the circumstances of the accident unnecessary. It was unreasonable that the defenders should in this position of matters be put to the expense of a jury trial. In the case of Shirra v. Robertson, June 7, 1873, 11 Maeph. 660, the opinion was expressed that an interlocutor allowing proof before answer of certain averments by the writ or oath of the pursuer was not appealable under the 40th section of the Judicature Act. That opinion was in the respondents’ favour.

Counsel for the appellant were not called upon.

At advising—