Scottish Court of Session Decisions

Alexander S. Paterson, plumber, Musselburgh, raised an action in the Sheriff Court of the Lothians and Peebles against Alexander Kidd and John Alexander Morris Amour, trustees of the late William Kidd, sometime farmer at Pinkiehill Farm, concluding for payment of £500 as damages for injuries caused to the pursuer through the fault or negligence of the defenders.

The defenders pleaded, inter alia, that the pursuer's averments were irrelevant.

On 27th March 1896 the Sheriff-Substitute ( Hamilton) pronounced the following interlocutor:—“The Sheriff-Substitute closes the record on the petition and defences: Of consent, before answer, allows the pursuer a proof of his averments on record, and to the defenders a conjunct probation,” &c.

The pursuer appealed to the Court of Session for jury trial.

The Judicature Act (6 George IV. cap. 120), sec. 40, provides “that in all cases originating in the inferior courts in which the claim is in amount above forty pounds, as soon as an order or interlocutor allowing a proof has been pronounced in the inferior courts (unless it be an interlocutor allowing a proof to lie in retentis, or granting diligence for the recovery and production of papers), it shall be competent to either of the parties, or who may conceive that the cause ought to be tried by jury, to remove the process into the Court of Session by bill of advocation, which shall be passed at once without discussion and without caution.”

On the pursuer moving the Court to order issues, the defender opposed the motion, and argued—The appeal was incompetent in respect the interlocutor allowing a proof before answer was pronounced of consent. The pursuer and the defenders had agreed to have the facts investigated by the Sheriff before the question of relevancy was discussed, and the pursuer was not now entitled to withdraw from that contract. The pursuer was as much bound as if he himself had moved for a proof—See the Evidence Act 1866 (29 and 30 Vict. cap. 112), sec. 4; and Cadzow v. Lockhart, July 10, 1875, 2 R. 928. [ Per curiam—But how could a pursuer ever appeal a case to the Court of Session for jury trial on your showing? Is not the Sheriff's interlocutor allowing a proof necessarily pronounced on the pursuer's motion?] No; for by the Sheriff Courts Act 1876 (39 and 40 Vict. cap. 70), sec. 23, the Sheriff is directed to appoint a diet of proof on his own initiative when probation is not renounced, and “when proof seems necessary.”

Argued for pursuer—The appeal was competent. The mere fact of consenting did not bar the pursuer from claiming issues, nor in any way take the case out of the provisions of the Judicature Act.

At advising—