Scottish Court of Session Decisions

In this action the question which came before the Court arose out of the interlocutors pronounced respectively by the Sheriff-Substitute ( Russell) of Roxburghshire, and by the Sheriff-Depute ( Pattison) on appeal. These interlocutors were as follows.—

“ Jedburgh, 27 th July 1874.—Having again considered the closed record, after having heard parties' procurators on the question of the relevancy of the action, before answer Allows to the parties a proof of their respective averments, and to the petitioners a conjunct probation: Grants diligence against witnesses and havers, and appoints a meeting with parties' procurators on the 30th inst., in order to fix a time for taking the proof.

Note.—While the essential facts are to a great extent disputed, the Sheriff-Substitute is of opinion the questions raised in the preliminary defences cannot be satisfactorily disposed of. On the face of the petition, read with reference to the admitted statements on the record, he does not find grounds on which the petition can be dismissed as incompetent. It is not unusual in similar petitions to crave alternatively either the delivery of a specific subject, or the payment of its value, as stated in the petition. The absence in the present case of any general claim for damages in the petition does not appear a good ground of objection to it. After the facts have been ascertained, it is quite possible that questions of some difficulty may arise for decision with reference to the cravings of the petition; but at present these cannot be determined. The petitioners appear entitled to obtain, with a view to their use in the proof, the documents described in the specification lodged by them, and the early production of them will greatly facilitate the proceedings at the taking of the proof. Unless the respondents produce these voluntarily, the Sheriff-Substitute will be prepared to grant a diligence for their recovery.”

“ Edinburgh, 8 th September 1874.—The Sheriff having considered the appeal and reclaiming petition for the respondents, answers for the petitioners, closed record, and whole process, Repels the plea of incompetency maintained by the respondents Repels also the plea of irrelevancy and insufficiency of the statements in the petition, so far as maintained to the effect of dismissing the action; and with this addition adheres to the interlocutor reclaimed against.

Note.—The plea of incompetency being in the Sheriff's opinion unfounded, and going to the very existence of the process, he considers it right that it should be repelled. The plea of irrelevancy generally is a defence on the merits, and it is not, except in some exceptional cases, advisable to dispose of it without a proof. It is generally best, as is done here, to allow a proof before answer. But when it is pleaded to the effect of craving a dismissal of the action, it falls within the same category as a plea of incompetency; and, so far as pleaded to that effect, requires to be repelled.

The Sheriff observes that the respondents, in answering certain articles of the petitioners' condescendence, not only deny the statements, but call them irrelevant. Thus—‘Not known, irrelevant

Page: 102↓

and denied.’ This is a bad and incorrect form of pleading, and ought not to be allowed. Irrelevancy is a matter of law, not an answer in point of fact, and it ought to have no place in the answer to statements in point of fact. It is at the same time illogical to deny a statement which is characterised as irrelevant. If it is irrelevant it is no matter whether it be true or not. One of the best tests of relevancy is to inquire whether the respondent is prepared to admit the statement objected to in point of fact. If he is not, it may safely be assumed that it is relevant.”

The respondents appealed by virtue of Act 6 Geo. IV., c. 120, § 40, and Court of Session Act 1868, § 73, to the Second Division.

The respondents (appellants) wished issues adjusted to try the cause by jury, but the petitioners respondents) wished the case to go to a proof, and stated that they would be perfectly satisfied to have the evidence taken either before one of the Judges of the Division or before the Lord Ordinary.