United Kingdom House of Lords Decisions

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Cite as: [1916] UKHL 297, 53 ScotLR 297

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SCOTTISH_SLR_House_of_Lords

Page: 297↓

House of Lords.

Wednesday, March 1. 1916.

(Before the Lord Chancellor (Buckmaster), Lord Kinnear, Lord Atkinson, and Lord Shaw.)

53 SLR 297

Gairdner

v.

Macarthur.

(In the Court of Session, March 9, 1915, 52 S.L.R. 427, and 1915 S.C. 589.)

Subject_Process — Appeal — House of Lords — Facts Established in Court of Session on an Appeal from Inferior Court — Court of Session Act 1825 (6 Geo. IV, cap. 120), sec. 40.
Facts:

In an appeal from the Sheriff Court the Court of Session allowed additional proof on the ground that the words “if necessary” in section 72 of the Court of Session Act 1868 meant “if necessary for the ends of justice.”

Held that an appeal to the House of Lords, on facts set up after such additional proof, was incompetent, being excluded by 6 Geo. IV, cap. 120, sec. 40.

Headnote:

This Case is reported ante ut supra.

The defender Captain A. J. Macarthur appealed to the House of Lords from an interlocutor of July 20, 1915, which, on the whole proof, recalled the Sheriffs' interlocutors, gave new findings in fact, and a finding in law that the defender was liable to the pursuer in the value of certain articles, with decree for £150. The respondent objected to the competency of the appeal.

Judgment:

Lord Chancellor—It is easy to appreciate the motives that have prompted the appellant's counsel to urge that he is at liberty to bring before your Lordships' House the further consideration of this case, for it undoubtedly involves serious consequences to his client. It is, however, plain that the appellant cannot proceed with this appeal unless he can show that the provisions of the statute of 6 Geo. IV, cap. 120, have no application to these proceedings.

Now the facts are these—The case was originally heard before the Sheriff-Substitute. Accordingly the cause commenced in the Courts of the Sheriff within the meaning of the statute to which I have referred. The Sheriff supported the finding of the Sheriff-Substitute, and from his judgment an appeal was taken to the Second Division of the Court of Session. On proceeding before this Court the appellant urged, as I gathered from a statement in the judgment of one of the learned Judges, that the evidence of two witnesses which had been given

Page: 298↓

in the Court below was untrustworthy, and that new and material matters were in his possession which should show that it could not be relied upon. For this, and it may be for other reasons, he was successful in contending that he should be allowed to amend the proceedings, and that further proof should be admitted. This took place, and the further proof proceeded before Lord Salvesen, and after his report the learned Lords of the Second Division heard the case and pronounced the interlocutor which is the subject of the present appeal.

Now that interlocutor is admitted frankly by Mr Sandeman to be an interlocutor which as far as it contains a finding of law is nothing but a statement of the irresistible conclusion to be drawn from the findings of fact. In order therefore to maintain the appeal it is necessary that the findings of fact should be open to review. Now the statute to which I have referred provides this—“When in causes commenced in any of the Courts of the Sheriffs, or of the magistrates of burghs or other inferior courts, matter of fact shall be disputed, and a proof shall be allowed and taken according to the present practice, the Court of Session shall, in reviewing the judgment proceeding on such proof, distinctly specify in their interlocutor the several facts material to the case which they find to be established by the proof, and express how far their judgment proceeds on the matter of fact so found, or on matter of law, and the several points of law which they mean to decide; and the judgment on the cause thus pronounced shall be subject to appeal to the House of Lords in so far only as the same depends on or is affected by matter of law, but shall, in so far as relates to the facts be held to have the force and effect of a special verdict of a jury finally and conclusively fixing the several facts specified in the ‘interlocutor.” The Court of Session have followed in all respects the direction of the statute, and the only question that arises for decision is whether they have found those facts in reviewing a judgment that proceeded upon the proof before the Sheriff's Court. I entertain no doubt that they were reviewing such a judgment. They did review it—in fact they recalled it—and I cannot think that they the less reviewed it because in order to make things more certain, and to give the appellant every possible opportunity, they permitted further evidence to be called. If once it be conceded that what they did was done in the course of reviewing a judgment which proceeded upon proof before the Sheriff's Court, then it necessarily follows that an appeal to this House upon a question of fact is incompetent and the appeal must fail.

Lord Kinnear—I entirely agree with the noble and learned Lord on the Woolsack. The one question seems to me to be whether the interlocutor brought before this House is an interlocutor pronounced in reviewing a judgment of the Sheriff's Court pronounced after proof. There is no question that it is. There is nothing before the House except an interlocutor which was pronounced in the course of the review of such a judgment.

Lord Atkinson—I concur.

Lord Shaw—I agree.

Their Lordships dismissed the appeal.

Counsel:

Counsel for the Appellant— Sandeman, K.C.— Macphail, K.C.— Wardlaw Burnet. Agents— James Scott, S.S.C., Edinburgh— Tredgolds, London.

Counsel for the Respondent— Constable, K.C.— MacRobert. Agents— MacRobert, Son, & Hutchinson, Paisley— Fyfe, Ireland, & Company, W.S., Edinburgh— Marchant & Newington, London.
1916