M'Avoy v. Young's Paraffin Light and Mineral Oil Co.

Question (per Lord Young), Whether if an action were brought in the Court of Session by a workman against his employer, and it appeared as a result of the evidence that the only ground of liability was under the Act, the action must therefore be dismissed?

The Lord Ordinary refused the pursuer's motion and “allowed the pursuers a proof of their averments, and to the defenders a conjunct probation.”

I am of opinion, therefore, that it is within the discretion of the Court in this case to ascertain the facts by a proof in the usual manner, instead of by the verdict of a jury, if such shall appear to be the expedient course of procedure.

Now, upon this point, I think it is only necessary to look at the record to see that the questions of fact and of law are in this case such as make it eminently desirable that the facts should be ascertained in such a manner as may enable the parties to get the law applied to each and all of the different cases presented without the necessity, in any case, of a new trial.

The case of Macfie v. Shaw Stewart , decided in the Second Division, January 24, 1872, 10 M. 408 , appears to me to afford an important illustration of the grounds upon which a cause, though among the number appropriated to jury trial, may be tried and decided by way of proof, and ought to be so tried. And the case of Cadzow v. Lockhart , decided in the First Division, July 10, 1875, 2 R. 928 , affords another illustration to the same effect. I think that the considerations referred to in these cases apply very forcibly to the present action.”