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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Coll v. J. & A. Gardner & Co. [1898] ScotLR 35_327 (12 January 1898)
URL: http://www.bailii.org/scot/cases/ScotCS/1898/35SLR0327.html
Cite as: [1898] ScotLR 35_327, [1898] SLR 35_327

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SCOTTISH_SLR_Court_of_Session

Page: 327↓

Court of Session Inner House Second Division.

[Sheriff-Substitute at Glasgow.

Wednesday, January 12. 1898.

35 SLR 327

M'Coll

v.

J. & A. Gardner & Company.

Subject_1Process
Subject_2Appeal for Jury Trial
Subject_3Competency
Subject_4Judicature Act 1825 (6 Geo. IV. c. 120), sec. 40.
Facts:

An action was raised in the Sheriff Court by a widow for damages at common law, or alternatively under the Employers Liability Act 1880, for the death of her husband. The pursuer averred, and the defenders denied, that due notice of the death had been given in terms of the Act. The Sheriff-Substitute on 7th June allowed parties a proof of their averments as to whether the notice required by statute had been given, and after proof had been led he, on 24th November, found that notice had been given in terms of the Act, and before answer allowed parties a proof of their averments.

Held that an appeal by the pursuer for jury trial under the provisions of the Judicature Act 1825, Sec. 40, was

Page: 328↓

competent, the interlocutor of 24th November being the first interlocutor allowing a proof as to the merits of the cause.

Headnote:

Mrs Catherine M'Coll, a widow, raised in the Sheriff Court at Glasgow against J. & A. Gardner & Company, quarrymasters, Glasgow, an action for £500 as damages at common law, or alternatively £175, 10s. as damages under the Employers Liability Act 1880, on account of the death of her son John M'Coll while in the employment of the defenders on 14th February 1896.

The pursuer averred, inter alia—“(Cond. 9) The pursuer caused notice of the death of the said John M'Coll to be given on the 17th of March 1896 in terms of the Employers Liability Act 1880.”

The defenders denied liability, and pleaded, inter alia—“(1) The action is irrelevant. (8) The pursuer not having given notice to the defenders as required by statute, the action so far as laid under the statute should be dismissed.”

On 7th June 1897 the Sheriff-Substitute ( Balfour) pronounced the following interlocutor:—“ Ante omnia allows the parties a proof of their averments as to whether the notice required by the statute was sent to and received by the defenders, and assigns Monday 26th July next at 10 a.m. as the diet.”

Proof was led as to the notice, and on 24th November the Sheriff-Substitute pronounced the following interlocutor:—“Finds that notice of the accident was received by the defenders within the time prescribed by the statute: Therefore repels the third plea-in-law for the defenders: Further, having heard parties' procurators on the defenders' plea of irrelevancy, before answer allows the parties a proof of their averments.”

On 8th December 1897 the pursuer appealed to the Court of Session for jury trial, and lodged an issue for the trial of the cause.

The defenders pleaded, inter alia, “that the appeal was incompetent,” and argued— The appeal was too late, as it was made more than fifteen days after 7th June 1897, the date on which a proof was first allowed. The Judicature Act 1825 provided (sec. 40) that the appeal for jury trial must be taken “as soon as an order or interlocutor allowing a proof has been pronounced in the inferior court.” An appeal was competent where proof was allowed of part of the pursuer's averments— Stewart v. Rutherfurd, July 19, 1862, 24 D. 1442, but when a proof of certain points had been taken, it was incompetent to appeal for jury trial when further proof was allowed Gill v. M'Ra, May 19, 1832, 10 S. 552.

Counsel for the pursuer was not called on.

 Judgment:

Lord Justice-Clerk—It may be quite a common thing that such a question as has been raised and disposed of in this case is disposed of with the merits of the case. Certainly it is convenient to get rid of it before, because if a jury is summoned, and the question turns on whether due notice was given that the inquiry was to proceed, the whole expense and trouble of a jury trial are practically wasted. It is plainly a purely preliminary question if parties choose to raise it, and I think it is quite certain that certain preliminary questions may arise in every court, and require to be expiscated by some kind of proof. We have such proofs in the Justiciary Court—a proof in which witnesses may be produced who are not in the lists giving notice what witnesses are to be called in the case—in order to see whether the case can duly go to trial. I do not think there is any ground for the contention raised by Mr Constable on this matter. I think the case must be dealt with just as an ordinary case coming up on appeal for jury trial.

Lord Young—I am of the same opinion. I think the objection to the competency of this appeal is absolutely without any foundation and is absurd on the very statement of it. The action is upon the Employers Liability Act and also at common law. The question of notice only relates to the action as laid on the Employers Liability Act, and it might have been laid on that exclusively. Upon the objection that notice had not been given, the Sheriff had to inquire into its truth, and he could only do that on inquiry as to the facts, if the parties disputed the fact whether notice had been given. But that is not an issue on the merits of the case at all; it is an issue on fact antecedent to the determination of whether there is a case at all before the Court. If the Sheriff had come to the conclusion, either upon the admission of the parties or upon inquiry, that there had been no notice as required by the statute, then there was no action before him and he would have been bound to dismiss it. There would have been nothing to inquire into if statutory notice had not been given. If he had taken that view and dismissed the action it would have been quite competent to bring the case here on appeal. But that would have been a question whether there was an action under the Employers Liability Act in Court, and if this Court had determined that notice had been given, contrary to the opinion of the Sheriff, the case would have been sent back to him to proceed with, as being an action under the Employers Liability Act, and to try the issue in that action on fact and on law. If thereafter he had allowed a proof, it would just be the ordinary case of the Sheriff having allowed a proof in an action determined to have been well brought into Court, and with the proper statutory notice—just as in any other case where an action must be brought within a given specified time (there are many such cases), and where the summons must be served within the statutory time. Therefore I think, as I have already said, that this objection is entirely without foundation.

Lord Trayner—I am of the same opinion. On the question of competency I think that the objection must be repelled. The

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Judicature Act by section 40 provides that in certain cases, as soon as an order or interlocutor allowing a proof has been pronounced in an inferior court, it shall be competent to either party to advocate that case in order that it may be tried before a jury instead of before the inferior judge who allowed the proof. But it is obvious that the meaning of that section is that when the inferior judge has ordered inquiry into the merits of a case which he is asked to determine, the parties, or either of them, if they think proper, may have the same question—the merits of the case—determined before a jury instead of before a judge. It would not have occurred to me that that covered the case of any inquiry which was antecedent—necessarily and properly antecedent—to the inquiry into the merits. The provision of the statute seems to me to apply only to the allowance of proof on the merits of the case.

Lord Moncreiff— I am of the same opinion. I had some slight doubts as to the competency of the appeal, but these have been entirely removed by what your Lordships have said. I think it would be very much to be regretted if we were obliged to hold this appeal to be incompetent. In the first place, the first interlocutor dealing with the claim at common law is that of 24th November 1897; and it would be anomalous if we held that the appeal was bad when that was the first interlocutor dealing with the main ground of action. In the second place, Mr Constable admitted that he did not dispute on the merits that the notice was well given.

The Court approved of the pursuer's issue as the issue for the trial of the cause.

 Counsel:

Counsel for the Pursuer— M'Clure. Agents— R. C. Bell & J. Scott, W.S.

Counsel for the Defender— Constable. Agents— Simpson & Marwick, W.S.

 1898

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URL: http://www.bailii.org/scot/cases/ScotCS/1898/35SLR0327.html