Scottish Court of Session Decisions

By Act of Sederunt dated 21st December 1723 it is provided as follows:—“The said Lords do hereby appoint and require the sheriffs of Scotland and their deputes, yearly, betwixt the 4th and 20th of February, to summon before them a competent number of persons living within the sheriffdom, who have knowledge and experience of the prices and trade of victual in those bounds, and from them to chuse fifteen men, whereof not fewer than eight shall be heritors, to pass upon the inquest, and return their verdict on the evidence underwritten, or their own proper knowledge concerning the fiars for the preceding cropt, of every kind of victual, of the product of that sheriffdom: And the said sheriffs and their deputes shall, to the same time and place unto which the jury is called, also summon the properest witnesses, and adduce them and all other good evidence before the said jury, concerning the price at which the several lots of victual have been bought and sold, especially since the first of November immediately preceding until that day; and also concerning all other good grounds or arguments from whence it may rationally be concluded by men of skill and experience what ought to be established as the just fiar prices for the said cropt; and any persons then present may in open Court, and no otherwise, and observing due order and respect, offer information to the jury concerning the premises and concerning the evidence adduced or that might be adduced before them: And if it appear to the sheriff or his deputes, or to the jury, that the adducing of proper evidence has been any way disappointed, or that the evidence adduced is defective, the said sheriff or his deputes shall adjourn the jury till a certain and proper day, that sufficient evidence may then be laid before them.… And the said sheriff or his deputes shall, on or before the first day of March, pronounce and give forth sentence according to the said verdict, determining and fixing the fiars prices for the cropt preceding, of each kind of victual of the product of that sheriffdom.”

On 10th June 1898 the Parish Ministers of Aberdeenshire raised an action against the Sheriff of the County, the Sheriff-Clerk, the Convener of the County, and the County Clerk and Treasurer, for the purpose of reducing and setting aside the verdict of the jury and decree of the Sheriff following, whereby the fiars price of oatmeal victual in the county of Aberdeen was struck for crop and year 1897.

The pursuers stated that their stipends were partly modified in oatmeal, and were partly payable according “to the highest fiars prices” of oatmeal of the county of Aberdeen, and averred—“(Cond. 3) The Fiars Court for the county of Aberdeen for crop and year 1807 was held at Aberdeen on or about the 11th day of March 1898, and was presided over by the defender Sheriff Crawford. Three witnesses attended at the Court and gave evidence as to the price of Aberdeenshire oatmeal, viz., John Lee, miller, Mill of Crimond, Crimond, who deponed to transactions to the amount of 2876 bolls at the price of £1941, 15s. 9d.; William Milne, miller, Mill of Feochel, Old Meldrum, who deponed to transactions in 1153 1 2 bolls at the price of £779. 1s.; and Alex. Byres junr., Nethermill, Cruden, who deponed to transactions in 1428 bolls,7 stones, 9 lbs. at the price of £957, 16s. 2d, The total amount of transactions thus deponed to was 5548 bolls, 2 stones, 9 lbs. at a total price of £3672, 12s. 11d., the average price per boll, according to the evidence, being thus 13s. 5 1 2d. (Cond. 4) No other evidence was laid before the jury with regard to oatmeal. The Sheriff, in charging the jury, called their attention to the paucity of evidence as to oatmeal, and he stated with regard to what he considered the paucity of evidence, that they were entitled to use their own observation and experience in fixing the fiars price of oatmeal. It was the duty of the Sheriff, inrespect he considered the evidence insufficient, to have adjourned the jury in order that sufficient evidence might be adduced. In failing to adjourn the jury the Sheriff acted illegally, and in breach of the terms of the said Act of Sederunt. Further, the Sheriff acted illegally and contrary to the provisions of the said Act of Sederunt, in directing the jury to use their own observation and experience in fixing the price. It was the duty of the Sheriff to inform the jury that their verdict must be returned upon the evidence or their own proper knowledge concerning the prices at which oatmeal of crop and year 1897 had been bought and sold in the market, and the direction to them to use their own observation and experience was erroneous in law, and was calculated to mislead, and did mislead, the jury as to their functions as after mentioned. (Cond. 5) The jury having retired, returned with their verdict, which, as regards oatmeal, fixed the fiars price thereof for the said crop and year at 12s. 6d. per boll. The said verdict is dated 11th March 1898, and so far as relates to oatmeal, is in the following terms:—‘Aberdeen, 11th March 1898.—The haill persons of inquest before named and designed, by the mouth of the said William Ferguson, their

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chosen chancellor, appretiate the victual underwritten (according to their own proper knowledge, and the evidence led before them) at the several prices set opposite to the different species of victual in the following schedule, the meal per 140 lbs. avoirdupois, and the grain according to the imperial quarter—1. Oatmeal per boll of 140 lbs. avoirdupois, 12s. 6d.—‘ Wm. Ferguson, C.’ On the verdict being returned, the Sheriff thereupon, by deliverance dated said 11th March 1898, interponed authority thereto, and ordained the price of victual to be rated accordingly. The said verdict, in so far as it relates to oatmeal, is inaccurate and false in respect it hears that the price of oatmeal was appretiated by the jury according to their own proper knowledge and the evidence led before them. In fixing the price of oatmeal the jury did not proceed upon the evidence which had been submitted to them, and upon their own proper knowledge as to the prices at which transactions in Aberdeenshire meal had taken place for crop 1897; nor upon either of those grounds. It is believed and averred that the actual method by which the jury arrived at their verdict was by taking the evidence led as to the price of oats, and having fixed the price of oats, they made a calculation as to how much meal could be produced by a quarter of oats, giving effect in their calculation to what they considered their experience entitled them to regard as the meal-producing qualities of oats of the crop in question. By this method they did not and could not arrive at the correct fiars price of oatmeal, or the price at which meal had been selling in the market. This method necessitated the proceeding upon uncertain and unreliable data, and was bound to show a less price than the selling price of oatmeal. None of the jury had any personal or proper knowledge whatever as to the prices at which Aberdeenshire oatmeal for crop 1897 had been sold and bought, and none of them had had personal dealings in oatmeal. It was their duty, therefore, to fix the price according to the evidence, or if they considered the evidence which had been led insufficient, to have called upon the Sheriff to adjourn the Court in order that sufficient evidence might be adduced. In arriving at their verdict in the manner averred, the jury acted under essential error induced by misdirection in law, and whether so induced or not their action was illegal, incompetent, and contrary to the provisions of the said Act of Sederunt, and to the immemorial custom of fiars courts throughout Scotland, and in particular in Aberdeenshire. The finding of the jury to the effect foresaid, and the sentence of the Sheriff following thereon, were therefore ultra vires, illegal, and contrary to the provisions of the said Act of Sederunt. They were also contrary to the previous practice of the Aberdeenshire Fiars Court, which as regards oatmeal had always given effect to the evidence adduced. (Cond. 6) On account of the said illegal and unwarrantable manner of fixing the fiars price of oatmeal, the pursuers have suffered serious loss and damage. Had the price been fixed according to the evidence, or according to the current market prices in the county, the value of the boll of oatmeal would have been at least 13s. 5 1 2d., and the pursuers' stipends would thereby have been increased by sums ranging to as much as £20 each.”

The Sheriff did not enter appearance. Preliminary defences were lodged by the remaining defenders in which they pleaded (1) that the action was incompetent in respect that none of the defenders called had any interest in the premises; (2) that the Court had no jurisdiction to interfere; and (3) that in any view the pursuers' averments did not disclose any illegality in the procedure justifying the intervention of the Court.

On 2nd February 1899 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Finds that the pursuers have stated no relevant case for the interference of the Court; therefore assoilzies the defenders from the conclusions of the action, and decerns.”

Note.—“The pursuers in this case are the Parish Ministers of Aberdeenshire, and the parties called as defenders are the Sheriff, the Sheriff-Clerk, the Convener of the County, and the County-Clerk. The object of the action is to reduce and set aside the verdict of the jury and decree of the Sheriff following, whereby the fiars price for oatmeal victual in the county of Aberdeen was struck for crop and year 1897. The ground of reduction is that the price in question was struck by an illegal method,—that is to say, by a method contrary to the Act of Sederunt of 1723—an Act which, whether or not originally obligatory, has in Aberdeenshire, as in most other counties, become obligatory by usage.

The special grounds of complaint are as averred—(1) that although the evidence adduced as to transactions in oatmeal victual was, in the Sheriff's opinion, defective, he yet failed to adjourn the Court as required by the Act of Sederunt; (2) that the Sheriff directed the jury that they were entitled to use their own observation and experience in fixing the price; and (3) that the jury acting on this direction disregarded the evidence adduced, and (proceeding by a method of their own) fixed the price of oatmeal victual at a figure lower than was warranted by the evidence, or by the true market price within the county.

The Sheriff has not entered appearance, considering that it is not his duty to do so. But preliminary defences have been lodged by the Sheriff-Clerk and the other defenders, in which they plead—(1) that the action is incompetent in respect that none of the defenders called has any interest in the premises; (2) that this Court has no jurisdiction to interfere; and (3) that in any view the pursuers' averments do not disclose any illegality in the procedure justifying the Court's intervention.

I am not, as at present advised, prepared to affirm either that the action is incompetent or that the Court has not jurisdiction. I agree that in strictness, and as matter of

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principle, the Sheriff, although not quoad hoc acting judicially, is yet functus when he has signed his interlocutor, and that consequently he has no duty, and perhaps no proper interest, to defend. I am also disposed to agree that neither the Convener of the County nor the County-Clerk have, as such, any interest in the matter. But, on the other hand, I consider that the Sheriff-Clerk, as custodier of the documents called for, may be in a different position. And as regards the Sheriff, I cannot overlook that, rightly or wrongly, it has been recognised in practice for nearly two hundred years that actions of this sort may be competently raised against the Sheriff as principal or even as sole defender. It does not follow that he is bound to appear,—that is for himself. But the cases cited at the discussion, and of which I have made a note, seem conclusive as to the practice. I cannot therefore throw out the action as incompetent.

Neither am I disposed to throw any doubt upon the jurisdiction of the Court to reduce on the ground of illegality the proceedings of fiars courts. It is true that originally the Sheriff was responsible only to the King's Exchequer, and collected in his own way for the Crown's use the information which is now embodied in the verdict of the jury. It is also true that in the latest cases on the subject, viz., those of Mylne v. Horne, 12 D. 883, and Howden v. Haddington, 13 D. 522, the matter was taken up and considered by the whole Court (acting, it would appear, rather administratively than judicially) upon a report by the Sheriff and a compearance by parties interested. But, on the other hand, there have been beyond doubt several cases in which actions of reduction of the verdicts of fiars courts have been sustained as competent. I refer particularly to the cases of Lawers v. Earl of Haddington, M. 7464, and Knox v. Law, M. 4420. I may refer also to Home v. Swinton, 7th February 1806, F.C., where a summary petition was refused on the ground that a reduction, and not a petition, was the proper proceeding.

But the question remains whether any illegality was here committed, or is averred to have been committed, by the Sheriff or by the jury; and on this question I am not able to sustain the relevancy of the pursuers' case. I shall endeavour to state my reasons in a word.

It is, in the first place, complained that the jury were told by the Sheriff that in fixing their prices for the various kinds of victual they were at liberty to use their own observation and experience. It does not seem to me that that was a wrong direction. The jury had of course before them the evidence adduced, and they had power to give to it such weight as they thought fit. It is not said that they were told they should or even might put it aside. The alleged direction, therefore (if it was a direction), came only, as I read the averment, to this—that the jury were not confined to the evidence, but might, if they chose, proceed partly or wholly on their own proper knowledge. Now that, as it seems to me, was simply putting in other words the direction of the Act of Sederunt.

Again, it is said that the jury in fact disregarded the evidence, and employed, as I have already mentioned, a calculation of their own. But here again I think the answer is in effect the same. The jury, as I read the Act of Sederunt, were certainly bound to listen to the evidence adduced, and to have it before them; but, on the other hand, they were entitled to give it what weight they thought fit; and if they concluded to give it little weight, or no weight, they may have been quite wrong; but that matter was one for their judgment.

Then lastly, it is said, or rather suggested, that the Sheriff was of opinion that the evidence was defective, and that being so he was bound to adjourn the Court. But how does this matter really stand? It is not, it will be observed, averred that the evidence was in fact defective. On the contrary, I infer that the pursuers thought and think that it was good and sufficient evidence; for they found on it as showing how unfair the verdict of the jury was. Their complaint, therefore, comes to turn not on the fact but on the Sheriff's opinion; and in that view it comes to depend on a very fine point indeed. For all that they in terms aver that the Sheriff in charging the jury directed their attention to the ‘paucity’ of the evidence, by which I suppose is meant the small number of witnesses examined. That is the whole averment, and from that the deduction is made that the Sheriff considered the evidence defective in the sense of the Act of Sederunt.

Now, it seems to me that this will not do. I must assume—because it is so stated—that the Sheriff commented on the ‘paucity’ of the evidence,—whatever that means. But I must, I think, also assume that the Sheriff did not consider the evidence defective, or at least so defective as to call for the exercise of his power of adjournment. Defectiveness is necessarily a matter of degree; and I do not know any definition of the degree contemplated by the Act of Sederunt, except that the degree shall be such as in the Sheriff's view to require an adjournment.

Altogether I do not see my way to entertain the action. It is, of course, possible that the jury erred in reaching a figure so substantially below the figure which was the result of the evidence,—evidence which, although coming only from three witnesses, represented undoubtedly transactions extending to over 5000 bolls. And if that was so, the pursuers have, of course, suffered grave injustice. But I have no right to make any assumption on that subject, still less to review or criticise the jury's conclusion. The Court can only, in my opinion, interfere upon the ground of illegality, and I do not consider that there is any averment of such ground here.”

The pursuers reclaimed, and argued—The proceedings in the liars courts were subject

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to the review of the Court, and the latter was not trammeled by the statutory rules regarding civil jury trials, but were entitled to review on the merits—Connell on Teinds, 432, et seq. The procedure was similar to reductions of verdicts of idiotry and furiosity pronounced by a jury, which could be reduced if not warranted by the evidence— Dewar v. Dewar, February 25, 1809, F.C. In the present case the evidence showed that the price of oatmeal was 13s. 5 1 2d. per boll, while the verdict of the jury fixed it at 12s. 6d. The verdict was therefore directly opposed to the evidence. The averments on record were that none of the jury had personal or proper knowledge of the price of oatmeal, and the Sheriff had misdirected them when he stated that they were entitled to use their own observations and experience in fixing the fiars prices of oatmeal. If the Sheriff thought there was a paucity of evidence his duty was to adjourn the case in terms of the Act of Sederunt till sufficient evidence could be laid before the jury. A proof should be allowed of these statements, and if they were shown to be true the verdict or decree following thereon should be reduced.

Counsel for the defenders were not called on.