Fleming v Eadie & Son
| Jurisdiction | Scotland |
| Judgment Date | 15 October 1897 |
| Docket Number | No. 2. |
| Date | 15 October 1897 |
| Court | Court of Session |
Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
ProcessAppealCompetencyAppeal for Jury TrialAgreement not to appealInterlocutorConstructionRemit to inferior Court for reportJudicature Act, 1825 (6 Geo. IV. cap. 120), sec. 40.
In an action of damages for personal injury raised in the Sheriff Court, the defenders pleaded that the pursuer's averments were irrelevant. The Sheriff-substitute pronounced this interlocutor,Closes the record of consent Repels the plea of irrelevancy Before answer allows a proof. The pursuer appealed for jury trial under the 40th section of the Judicature Act, 1825. The defenders objected to the competency of the appeal, on the ground that the interlocutor allowing a proof had been pronounced of consent, and embodied an agreement between the parties not to appeal for jury trial.
The Court (distinguishing from Paterson v. Kidd's Trustees, May 21, 1896, 23 R. 737) repelled the objection to the competency of the appeal in respect that, on a fair reading of the interlocutor, the words of consent did not apply to the part of the interlocutor which allowed a proof.
Observations as to remitting to the Sheriff for a report where parties are at variance as to the accuracy of an interlocutor pronounced in the Sheriff Court in so far as it bore to be of consent.
In June 1897 Walter Fleming, sanitary inspector, in the employment of the Corporation of the City of Glasgow, brought an action in the Sheriff Court at Glasgow, against Alexander Eadie & Son, contractors, 280 Cathcart Road, Glasgow, praying for 1000 as damages on account of personal injuries alleged to have been sustained by him through the fault of the defenders.
The defenders pleaded, inter alia;(1) Irrelevant.
On 7th July 1897 the Sheriff (Spens) pronounced this interlocutor:Closes the record of consent Repels the plea of irrelevancy Before answer allows a proof and assigns Monday 18th October next at 10.30 a.m. as a diet.
The pursuer appealed for jury trial under the 40th section of the Judicature Act, 1825.
The defenders objected to the competency of the appeal, and argued;The appeal was incompetent, in respect that the parties had agreed that the procedure should be by way of proof before the Sheriff. The case was ruled by Paterson v. Kidd's Trustees.SC1 In that case it was decided that an interlocutor, pronounced in a Sheriff Court, allowing a proof of consent, was evidence of a bargain between the parties to forego their right of appeal for jury trial under the 40th section of the Judicature Act, 1825, and was consequently not appealable. The language of the interlocutor in Paterson'sSC case1 was not the same as that of the interlocutor here, but in substance and effect the two interlocutors were identical. In Paterson'sSC case1 the interlocutor of consent before answer allowed a proof; here the interlocutor of consent repelled the plea of irrelevancy and before answer allowed a proof, but the consent applied not merely to the repelling of the plea but also to the allowance of proof, and the meaning of both...
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