 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Caffer v. Allan [1896] ScotLR 33_601 (28 May 1896) URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0601.html Cite as: [1896] SLR 33_601, [1896] ScotLR 33_601 |
||
[New search] [Printable PDF version] [Help]
Page: 601↓
Sheriff-Substitute of Lanarkshire.
Observed by Lord Young that an interlocutor in the Sheriff Court deciding an ordinary action after proof should contain in itself all the findings in fact on which the Sheriff's judgment is based. It is irregular for him to make findings in fact in his note which are not included in his interlocutor; and such findings are not properly imported into the interlocutor by the use of the expression “For the reasons in note.”
This was an action brought in the Sheriff Court of Lanarkshire, at Glasgow, for repetition of the price of a horse, which was alleged to have been disconform to warranty in respect of unsoundness. The Sheriff-Substitute ( Spens) after a proof assoilzied the defender. The interlocutor after sundry findings in fact proceeded as follows:—“For the reasons in note, sustains the defences, and assoilzies the defender, and decerns.” There was no finding in fact as to whether the horse was unsound or not when sold, but in his note the Sheriff-Substitute said:—“I am of opinion upon the veterinary evidence that unsoundness is not established,” and “The pursuer has failed to satisfy me that the horse was unsound at the date of sale.” The pursuer appealed to the Second Division of the Court of Session. The Court dismissed the appeal. On the merits the question was one purely of fact.
In giving judgment,
“The interlocutor of the Sheriff-Substitute is not altogether satisfactory, and is another illustration of a practice which has been growing up, especially in the west. The interlocutor is—“Finds it not proved that any warranty was granted,” and then it goes on, “for the reasons in note sustains the defences and assoilzies the defender.” That is quite irregular. A note can never be made part of an interlocutor. In his note the Sheriff-Substitute states—“I am of opinion upon the veterinary evidence that unsoundness is not established.” That ought to have been a finding in the interlocutor, and we shall have to find, both that it was not proved that any warranty was granted, and also that it was not proved that the animal was unsound.”
The Court pronounced the following interlocutor:—
“Dismiss the appeal: Find in fact in terms of the findings in fact in the interlocutor appealed against: Further find that it is not proved that the brown mare in question was unsound when sold: Therefore of new sustain the defences and assoilzie the defender from the conclusions of the action, and decern.”
Counsel for the Pursuer and Appellant— Macaulay Smith. Agents— Robertson & Wallace, S.S.C.
Counsel for the Defender and Respondent— Lees— A. S. D. Thomson. Agent— J. Stewart Gellatly, S.S.C.