Dick & Stevenson v. Mackay

Subject_ Contract — Condition Precedent — When Implement of Condition Prevented by the Fault of the Debtor in the Obligation.

Judicature Act 1825 (6 Geo. IV. c. 20), see. 40 — Process — Appeal — Finality of Judgment of Court of Session on Matters of Fact — Remit to Court below. Facts: Application (in affirmation of a judgment of the Court of Session) of the doctrine Pro impleta habetur conditio cum per eum stat, qui, si impleta esset, debiturus esset .

In appeals falling within the 40th section of the Judicature Act no remit will be made to the Court of Session to pronounce findings as to matters of fact unless the record has distinctly raised questions relative thereto, and it can be shown from the record that the Court of Session has not exhausted the issue before it, the House of Lords having no concern with the proof led in the Sheriff Court.

Lord Blackburn —My Lords, this is an appeal against an interlocutor of the First Division of the Court of Session pronounced in reviewing the judgment of the Sheriff Court of Lanarkshire, proceeding on proof taken on a record made up in the Sheriff Court.

The old rules of pleading in force in England at that time were founded on the strictest logic, often carried to an extreme which, when the pleadings were not managed by very skilful hands, worked injustice, but always founded on a principle; and those, which regulated special verdicts, to which the Legislature here refers, were no exception. They are very accurately Page: 388 ↓