United Kingdom House of Lords Decisions

I have as yet really failed, I am afraid, to understand wherein the averments in the pleadings are not sufficiently specific. I suppose that in the Scots law the object is to make people state clearly what it is that they mean to prove, not to require them to state evidence, but so to aver that there is sufficient particularity and that there will not be embarrassment or surprise to their adversaries. I presume that is the general object. In my opinion it is quite sufficiently stated here.

I must observe that this point of pleading does not appear, so far as I see, to have been in the least degree mentioned in the Court below. I am not sure that it is mentioned even in the respondents' case in this House. If it is, at all events I think it has really no substance in it.

I will only make one further observation, which is this. It is greatly to be regretted that in cases of this kind you have to decide upon the particular facts of each case upon evidence. I do not believe myself this requirement will prove so formidable as some people seem to assume; but the only alternative that I can see is to allow it to be treated as a matter of law. Now how the question whether freestone or any other kind of stone or substance which might be found in the soil is or is not a mineral can be treated as a matter of law really passes my understanding. The law has sufficient tasks to undertake, but the judges in a court must be inspired if they are able to answer for themselves what is pre-eminently a question of fact by evolving the answer from their own inner consciousness. There is no method except to ascertain these things as matter of fact according to the rules that have been laid down by the Courts.

I therefore think that there ought to be proof in this case, and that the judgment of the Court below ought to be reversed.

Lord Atkinson—I concur.

Lord Gorell—I take the same view. I concur in the judgment proposed.

Lord Shaw—In this case the Lord Ordinary allowed a proof. It is pled by one of the parties that the stone in question formed an exception to the general rock of the district. That exception must be established by evidence, and the onus of doing so rests upon the person proponing the exception. In the pleadings of parties under the law of Scotland there is a wholesome rule to the effect that a proof will not be ordered or evidence taken upon a vacuous generality. The whole question in this case is whether this pleading can be so characterised. If so, a party would be prejudiced by the lack of sufficient notice of the other party's case.

I cannot, in view of the passages that have been cited from answer 11, hold that this is a mere generality in pleading. I think the specification is sufficient to entitle the Lord Ordinary to have allowed the proof, and I think the burden of proof should be where I have ventured to put it. I am accordingly of opinion that the appeal should be sustained and a proof allowed, the appellants to lead therein, as was provided by the interlocutor of the Lord Ordinary, Lord Cullen, on the 6th December 1910.