Robson v Menzies
| Jurisdiction | Scotland |
| Judgment Date | 10 June 1913 |
| Docket Number | No. 19. |
| Date | 10 June 1913 |
| Court | High Court of Justiciary |
Lord Justice-General, Lord Kinnear, Ld. Johnston.
Sheriff—Small-debt procedure—Appeal—Malice and oppression—Deviations from statutory form—Incompetency—Hearing of incompetent evidence—Small Debt (Scotland) Act, 1837 (7 Will. IV. and 1 Vict. cap. 41), sec. 31.
By the Small Debt (Scotland) Act, 1837, an appeal in small-debt cases is only competent when (sec. 31) ‘founded on the ground of corruption or malice and oppression on the part of the sheriff, or on such deviations in point of form from the statutory enactments as the Court shall think took place wilfully, or have prevented substantial justice from having been done, or on incompetency, including defect of jurisdiction of the sheriff.’
Held that under the above section no appeal was competent unless in a case where there had been a denial of justice owing to a failure of duty on the part of the Sheriff. Held further (1) that ‘malice and oppression’ meant malice and oppression in the ordinary signification of the terms, and pointed to something done by the Sheriff from wrong or capricious motives of his own; (2) that the expression ‘deviations in point of form from the statutory enactments’ covered any case in which the Sheriff had denied justice by not allowing the parties a hearing; (3) that ‘incompetency’ referred exclusively to the entertainment by the Sheriff of a cause which he might not competently entertain.
In a small-debt action at the instance of a landlord against his tenant for recovery of a proportion of taxes paid by the pursuer in respect of the subjects let, the parties lodged a minute in which, ‘to obviate proof thereon,’ they agreed in admitting the lease and a correspondence which had taken place between their respective agents. The Sheriff-substitute ex proprio motu took evidence as to the purpose for which the subjects were let, and thereafter assoilzied the defender. In an appeal against this judgment on the grounds of (1) incompetency, and (2) malice and oppression, held that if the Sheriff had erred in taking the evidence his error was one in law only, and that no appeal lay on either of the grounds stated.
On 21st January 1913 William Frier Robson brought an action in the Small-Debt Court at Duns against Colonel Charles Thomson Menzies, in which the pursuer claimed payment of £5, 5s. 8d. for taxes alleged to be due by the defender to him in respect of certain premises let by him to the defender.
On 21st February 1913 the Sheriff-substitute (Macaulay Smith) assoilzied the defender from the conclusions of the summons.
The pursuer appealed to the High Court of Justiciary against this judgment, and lodged a note of appeal, in which it was stated:—‘On 21st February 1913 a minute of admissions* was lodged, together with the lease and the copy correspondence referred to in said minute. Said minute was lodged for the purpose of obviating the leading of any proof, and bears to be a renunciation of proof by both parties. Said lease was a probative document, and contained the whole terms and conditions of the bargain between the pursuer and the defender in reference to the tack of the premises, in respect whereof the pursuer claimed the sum sued for from the defender, and it provided, inter alia, that the said premises were let as an unfurnished residence. Notwithstanding that neither party sought to lead any proof other than that contained in said minute of admissions, the Sheriff-substitute stated that he was entitled to have evidence as to the express purpose for which the house was let, and that as he could not find this from the lease, he was not going to look at it, but he would like to hear the circumstances under which the house was taken. The pursuer objected to the competency of leading evidence as to the purpose for which the premises were let, in respect that the lease was the measure of the agreement between the parties; but the Sheriff-substitute insisted on the defender and Thomas Smart,
overseer at Kames, defender's own residence, giving evidence as to the purpose for which said premises were let, and on their testifying that the premises were let for the purpose of storing defender's furniture and as a residence while defender's own house was under repair, the Sheriff-substitute held that these facts constituted a special agreement between the parties, relieving the defender of any liability to pay taxes for the period of his occupancy under the lease, and he accordingly assoilzied the defender, and found the pursuer liable to defender in £1, 3s. of expenses.’
The grounds of appeal were stated as follows:—‘(a) Incompetency. The said lease is a probative document, and contains the whole terms of the contract between the appellant and the defender, and no addition to, or modification thereof, could be made by oral evidence. Further, the purpose for which said premises were let was not a competent consideration to take cognisance of in deciding whether or no the defender was liable to relieve the pursuer of the taxes due by defender in respect of his period of occupancy under said lease. (b) Malice and oppression. Parties having renounced probation by minute lodged in Court, it was malicious and oppressive of the Sheriff-substitute, at his own hand, to insist on leading evidence, and although said evidence was irrelevant and incompetent, to decide the case upon and in respect of said evidence.’*
The appeal was heard before the High Court on 27th May 1913.1
At advising on 10th June 1913,—
Lord Justice-General.—This is an appeal against a judgment in the Small-Debt Court. The action was a claim for payment of £5, 5s. 8d. of taxes, which the lessor of certain premises claimed from the lessee, and the defender was assoilzied. He was assoilzied after the Sheriff-substitute had listened to evidence which, in fact, according to the statement of the appellant, the learned Judge himself insisted should be led before him. This evidence, it is said, he had no business to listen to, because the lease, which
was produced, was the only document which could show the relationship between the landlord and the tenant, and contained the full terms of the bargain between them. The appellant is the pursuer, and he presents this appeal, and in the note of appeal he sets forth his reasons for the appeal thus—[His Lordship read the grounds of appeal as stated supra].
A great many cases were quoted to us, and I am afraid it is true that the cases are not altogether reconcilable. For that reason I do not propose to go through them seriatim; but I may say that I have, as a matter of fact, read every case in the books that I have discovered which has been decided on this statute. The cases not being reconcilable, I think it puts upon us the duty of going to the statute itself. And I may say also that I think it is all the more necessary to give what will, I hope, be an authoritative judgment upon this matter, because the discrepancies of the cases may, to a certain extent, be explained by the fact that some of them were pronounced at Circuit Courts, where there is obviously not the same opportunity for full citation of authorities and consideration as there is in the High Court here.
The matter naturally depends upon the 31st section of the Small Debt Act, but that must be taken along with the 30th section, and the 30th section provides ‘No decree given by any Sheriff in any cause …...
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