M'Alpine & Sons v. Docherty

Subject_1 Proof Subject_2 Separate Proof of Preliminary Defence Subject_3 Discharge Subject_4 Reparation. Facts: A workman bringing an action for damages against his employers was met by the defence that the claim had been discharged. Held (reversing judgment of Sheriff, and reverting to that of the Sheriff-Substitute) that proof of the averments relating to the discharge should be taken before the main question was remitted to proof.

The defenders pleaded—“(4) The pursuer having accepted a sum in full settlement of his claim, is debarred from insisting in the present action, and the action should therefore be dismissed, with expenses.

The Sheriff-Substitute ( Spens ) pronounced the following interlocutor:—“Allows pursuer a proof of the averments contained in answers 1 and 2 of the answers to defenders' separate statement of facts, and to the defenders a conjunct probation, and sends the case to the diet roll of 12th July, pursuer on or before said diet to consign the sum of £3 admittedly paid to him.”

The pursuer appealed to the Sheriff ( Berry ), who pronounced the following interlocutor:— “Recals the interlocutor appealed against: Allows a proof, subject to the condition that before the proof the pursuer shall consign the sum of £3 admittedly paid to him.”

Note .—“This case has been appealed on the ground that the whole case should be sent to proof. The Courts, as the decisions show, do not favour the proof in a case being split up. I do not think that there is sufficient ground in the present case for departing from the general rule on that point. The proof allowed is subject to the condition of the sum of £3 being consigned in Court.”