Scottish Court of Session Decisions

James D. Cranston, horsedealer, Glasgow, pursuer, brought an action in the Sheriff Court there against Mallow & Lien, provision merchants, Glasgow, defenders, for payment of £28, being the price of a bay horse sold and delivered by the pursuer to the defenders on or about 25th May 1910.

Proof was allowed and led, and the evidence was recorded.

On 22nd December 1910 the Sheriff-Substitute ( Craigie) decerned against the defenders as craved.

The defenders appealed to the Sheriff ( Millar), who on 22nd February 1911 pronounced the following interlocutor — “Recals the interlocutor of 22nd December last: Finds in fact (1) that on 25th May 1910 the pursuer sold to the defenders a bay horse at the price of £28, with a warranty that it was a good worker and sound in wind; (2) that the defenders bargained that they should have a week's trial with the horse; (3) that they returned the horse within the week, on the ground that it was suffering from stringhalt and was going lame: Finds in law that the contract was one of sale on approbation, and that the defenders having returned the horse within the period allowed for approval, there was no completed contract of sale: Therefore assoilzies the defenders from the conclusions of the action, and decerns.

The Sheriff appended to his interlocutor a note setting forth the authorities on which he based his finding. On 28th February 1911 he granted leave to appeal to the Court of Session.

On 2nd March 1911 the pursuer appealed.

When the case was called in the Summar Roll the defenders took objection to the competency of the appeal, and argued — The appeal was incompetent because the Sheriff had not complied with the provisions of section 8 of the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51). That section was imperative. The questions of law for the decision of the Court must be stated in the interlocutor. That had not been done here. A mere finding in law would not do. It was true that in Duke of Argyll v. Muir, 1910 S.C. 46, 47 S.L.R. 67, the questions of law were not stated in the interlocutor disposing of the cause, but they were set forth in the interlocutor granting leave to appeal. In the face of section 8 the case could not be remitted back to the Sheriff. This was a summary process, and it was the policy of the Legislature to restrict appeal in this type of case.

Argued for the pursuer—The appeal was competent. The Sheriff had made a finding in law in his interlocutor. He had thereafter within seven days granted the pursuer leave to appeal. It was thus clearly to be inferred that he considered that an important question of law was involved in his decision. He had complied with the spirit of the section. It was true that the wording of the section was not very felicitous, but the underlying idea was perfectly plain. It had already been laid down in Duke of Argyll v. Muir ( sup. cit.) that an express statement of the questions of law need not be given in the Sheriff's interlocutor.