Kelly v. James Fraser & Co. [1905] ScotLR 42_424 (10 March 1905)

Kelly v. James Fraser & Co. [1905] ScotLR 42_424 (10 March 1905)

Section 6 of the Employers' Liability Act 1880 does not impliedly exclude the right of either party to remove a cause to the Court of Session under section 40 of the Judicature Act 1825 after an order for proof has been pronounced; the precedent in Patons v. Niddrie and Benhar Coal Company, Limited is binding and indistinguishable from the present case.

Citation
[1905] ScotLR 42_424
Parties
Pursuer and Appellant: Mrs Mary M'Cabe or Kelly; Defenders and Respondents: James Fraser & Company
Jurisdiction
Scotland
Judgment Date
10 March 1905
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Court of Session, Inner House, First Division
Outcome
defenders' objection to competency repelled; appeal allowed to proceed
Legal Topics
Removal of Cause, Competency of Appeal, Employers' Liability Act 1880, Sheriff Courts Act 1877, Judicature Act 1825, Jury Trial
Civil Procedure Employment Law Removal of Cause Competency of Appeal Employers' Liability Act 1880 Sheriff Courts Act 1877 Judicature Act 1825 Jury Trial

Case Brief

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Parties

Mrs Mary M'Cabe or Kelly

Pursuer and Appellant

James Fraser & Company

Defenders and Respondents

Procedural Posture

Civil Appeal / Appeal From Sheriff Court to Court of Session, Inner House, First Division

Legal Issues

  1. 1 Whether section 6 of the Employers' Liability Act 1880 excludes removal to the Court of Session under section 40 of the Judicature Act 1825 after an order for proof has been pronounced.
  2. 2 Whether the proper procedure for removal is exclusively under the Sheriff Courts Act 1877, section 9, or if the Judicature Act 1825, section 40, remains available.

Ratio Decidendi

Section 6 of the Employers' Liability Act 1880 does not impliedly exclude the right of either party to remove a cause to the Court of Session under section 40 of the Judicature Act 1825 after an order for proof has been pronounced; the precedent in Patons v. Niddrie and Benhar Coal Company, Limited is binding and indistinguishable from the present case.

Court Disposition

defenders' objection to competency repelled; appeal allowed to proceed

Orders

  • Objection to competency of appeal repelled.
  • Issue proposed by pursuer approved.