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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bain v. Heritors of Duthil [1894] ScotLR 31_427 (13 February 1894)
URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0427.html
Cite as: [1894] ScotLR 31_427, [1894] SLR 31_427

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SCOTTISH_SLR_Court_of_Session

Page: 427↓

Court of Session Inner House First Division.

[Sheriff of Inverness.

Thursday, February 13. 1894.

31 SLR 427

Bain

v.

Heritors of Duthil.

Subject_1Process
Subject_2Appeal
Subject_3Mode of Trial
Subject_4Judica-ture Act 1825 (6 Geo. IV. cap.120), sec.40.
Facts:

The minister of a parish sued the heritors for payment of £1000 as manse maill, alleging that he had been unable to occupy the manse for eight years owing to its uninhabitable condition. The defenders appealed for jury trial under the 40th section of the Judicature Act, but moved the Court to remit the cause to the Lord Ordinary on Teinds, in respect that he had already had cognisance of the matters in dispute between the parties in an appeal under the Ecclesiastical Buildings and Glebes (Scotland) Act 1868. The pursuer moved that the case should be sent back to the Sheriff for a proof.

The Court remitted the case to the Sheriff for proof, on the grounds that it was peculiarly fitted for trial before the local tribunal, and that it was desirable to obviate the possibility of an appeal to the House of Lords upon the facts.

Page: 428↓

Headnote:

This action was raised in the Sheriff Court at Inverness in July 1892 by the Rev. James Bain, minister of Duthil, against the heritors of that parish for payment of £1000 as manse maill.

The pursuer averred that from defective drainage, the proximity of a crowded churchyard, and other causes, the manse of Duthil had not been a fit and habitable residence for him and his family since May 1884, when he ceased to occupy it, and that from that date he had been without a habitable manse through the fault of the defenders.

It appeared from the averments of parties that the pursuer had appealed to the Sheriff of Inverness under the Ecclesiastical Buildings and Glebes (Scotland) Act 1868 (31 and 32 Vict. cap. 96), in order to have the heritors ordained to put him in possession of a habitable manse. The case had subsequently been appealed by the heritors to the Lord Ordinary on Teinds ( Stormonth darling) who, after obtaining reports from men of skill, ordained the defenders to execute certain repairs upon Duthil manse. These repairs were not completed at the date when the present action was raised.

On 27th May 1893 the Sheriff-Substitute ( Blair) allowed parties a proof of their averments, and on appeal, this interlocutor was affirmed by the Sheriff ( Ivory).

The defenders then appealed to the First Division under the 40th section of the Judicature Act 1825, and moved the Court to remit the case to Lord Stormonth Darling for proof, in respect that he was already cognisant of the matters in dispute between the parties. They submitted that this course was competent, and referred to the case of Willing & Company v. Heys & Sons, November 15, 1892, 20 R. 34. They further submitted that it was the most appropriate mode of trial in the circumstances of the case. Alternatively, they moved that the case should be sent to trial by jury.

The pursuer moved the Court to remit the case to the Sheriff Court, and argued that that was the convenient forum for trial of the case, looking especially to the nature of the proof which would have to be led. Alternatively, he moved the Court to send the case to trial by jury.

At advising—

 Judgment:

Lord President—My opinion on the whole is that we shall best exercise our jurisdiction by dismissing this appeal and remitting this case back to the Sheriff. The action is one for a considerable sum, but at the same time the kind of question which has to be tried is peculiarly appropriate to a local tribunal, and the evidence is to be found in the place where the subjects are.

The appellants rest their appeal on one definite ground. They say that there has already been a good deal of procedure before a Lord Ordinary in a proceeding relating to the condition of this same manse. But then the appellants admit that the case must go to proof. Now, the procedure in the Outer House to which they refer has not been of the nature of proof. Remits were made to men of skill and reports obtained—a mode of inquiry quite appropriate to the proceedings before the Lord Ordinary—and the Lord Ordinary has decided the matter upon these reports. But it is admitted that the case must be opened afresh and tried on evidence yet to be given. That being so, I am disposed to think that there is no such high convenience in sending the case to a judge who has already had cognisance of the matters in dispute as there would at first sight appear to be, for his Lordship would require to divest his mind of the impressions formed in the course of the previous procedure.

I am also to some extent influenced by the consideration that if the case be tried in this court before a judge, an appeal to the House of Lords on the facts would be competent. That, although not conclusive, has a legitimate weight.

Accordingly I am not prepared to accede to the motion of the appellants that the case should be tried by a proof before the Lord Ordinary.

Now, neither party asks for jury trial; the appellants appealed for the definite purpose which I have discussed, and the respondent's motion is that we should dismiss the appeal. That last seems to me to be the proper course to take.

Lord Adam—I am of the same opinion. The appeal has been brought here under the 40th section of the Judicature Act. The object of that section is to enable the party appealing to obtain a trial by jury. But the appellant in this case having come here says that was not the object of his appeal, but that the case ought to be tried by a judge. As the other side also say that a proof is the appropriate mode of trial I think we are entitled to send the case for proof. If it had been truly an action of damages there would have been more difficulty in not sending it to a jury. But that is not the nature of the case. The case is laid on the proposition that it is the duty of heritors to supply a habitable manse, and the action is for breach of that duty from 1884 onwards, and if that is established then there remains to be considered what is a fair rent during that period.

The question therefore is, assuming that there is to be a proof, who is to take it? To my mind the case ought never to have come from the Sheriff. It is entirely a question for a local inquiry before the Sheriff, viz., what has been the state of these subjects during a considerable period? In the whole circumstances I think that the case ought never to have been brought up from the Sheriff and that we should send it back.

Lord M'Laren—I am reminded by counsel that in a former case I had expressed an opinion unfavourable to the practice of remitting advocations—for this is really an advocation although it is called an appeal—to the Sheriff. The ground of

Page: 429↓

that opinion is, that while the Sheriff Courts by their original constitution had unlimited jurisdiction in personal actions, the Legislature had thought fit to restrict that jurisdiction by providing that it should only exist concurrently with a right in either party to remove the case to the Court of Session for jury trial if the case be of the value of forty pounds. If the question were open I should doubt whether this Court had the power in such cases to remit to the Sheriff. But it has been decided in a very authoritative way that this course may be taken. I agree that the circumstances of this case are such as to render it more suitable for investigation before the local tribunal rather than the Court of Session because of the entirely exceptional character of the case, and because of its affinity to cases arising under the Act 31 and 32 Vict. cap. 96 in which the judge is final on the facts. Neither party desires that the case should be sent to a jury, and we cannot, I think, be wrong in taking the course which will make the decision on the facts final, at all events in the Court of Session.

Lord Kinnear—I agree with your Lordship in the chair.

The Court remitted the case to the Sheriff for proof.

 Counsel:

Counsel for the Pursuer— C. S. Dickson— Dewar. Agents— Cornillon, Craig, & Thomas, S.S.C.

Counsel for the Defenders— Graham Murray, Q.C.— Maconochie. Agents— Mackenzie, Innes, & Logan, W.S.

 1894

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URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0427.html