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doubt at all. An affirmative answer to the first question was valueless to the pursuers. Defect was affirmed, but no fault on the part of the defenders for that defect was found, which is but another way of saying that by excluding from the purview of the jury the essential question of the defenders' negligence the Sheriff denied the pursuers the opportunity, to which they were entitled, of having their common law case effectively affirmed, and indeed, as from the hour when the question was adjusted, ensured a verdict for the defenders. In my judgment the verdict of the jury, though they intended to find for the pursuers at common law, was quite properly entered up by the Sheriff, in the absence of any finding on their part of fault at common law, as a ver dict for the defenders. If all that be so, I cannot conceive a flaw more fundamentalmore fatal-than that with which we are here concerned. In a sentence the pursuers had a right to have their common law case properly tried, but the form of the question adjusted by the Sheriff effectively prevented that result. In these circumstances I am clearly of opinion that a miscarriage of justice has resulted. It would in my opinion be regrettable if the Court were impotent to afford the pursuers a remedy. I do not, however, think that that is so. I am of opinion that a remedy is open to the pursuers, and that this action affords it. As Lord President Dunedin said in Hughes (1907 S.C. 613), having held that appeal was there excluded-"It is absolutely necessary that there should be some way of getting rid of what otherwise might be an injustice." An action of reduction there, as here, provided a "way."

It was argued that we cannot safely interfere with what the Sheriff did, because we are unaware of the evidence led prior to the adjustment by him of the crucial question. That consideration is to my mind quite immaterial. I am indifferent to the nature or quality of the evidence led so long as I am certiorated as I am that the Sheriff regarded that evidence, whatever it may have been, as warranting him in leaving to the jury the determination of the pursuers' common law case, and that in the event of their desiring to decide in favour of the pursuers he failed to provide the jury with machinery enabling them effectively to do so.

It was further argued for the defenders that there may have been included in the Sheriff's charge to the jury what is excluded from the first question which he put to them. The argument suggests the adjustment of questions such as these by refer ence, the reference being to the Judge's charge. Now, in the first place, I am not disposed in order to decide the matter submitted to us to have recourse to what is, with all respect to the Sheriff, at best mere surmise. There is no hint in the opinion which the Sheriff delivered in interpreting the verdict returned that his charge in any way supplemented the defect in the first question. Indeed, the opinion suggests— -nay, to my mind establishes - the contrary. The Sheriff decided the case against

the pursuers at common law on the short and to my mind inconclusive view that when the jury stated as they did that the pit was unsuitable because of damp, they did not intend to affirm that it was defective because of damp. Apart from that, however, the questions put by the Sheriff bear to be selfsufficient, self-contained, and exhaustive. That they were so intended by the Judge and were so treated by the jury does not appear to me to admit of doubt. The questions purport to elicit from the jury all the materials necessary to enable them to affirm or deny the common law liability of the defenders. In my opinion a cardinal-nay, indispensable part of the first question was missing, viz., to whose fault was the defect due? That being so, I respectfully demur to the view that that fundamental defect may safely be deemed to have been remedied by something which the Sheriff may have said in the course of his charge.

It was further argued for the defenders that at the worst the Sheriff laid down bad law, that that is a risk incidental to any judicial proceeding, and that its consequences cannot therefore be regarded as a fundamental nullity. To my mind the question is one of degree. When I find, as I find here, that the Sheriff excluded from the effective consideration of the jury the whole of the pursuers' common law case, I cannot assimilate the result to an ordinary error in law. The position is much the same as if, the pursuer having claimed the right to submit two cases to the jury-one at common law and one under the Actthe Sheriff had arbitrarily and openly decided that he would submit one of these to the jury, but had definitely refused to submit the other. If that had happened I should regard the result as involving a grievous miscarriage of justice, and I think it is inconceivable that our law should be impotent to afford a remedy.

If the case had been tried in this Court it would have been tried upon a document which would in effect, if not indeed in terms, have submitted to the jury two questions (1) Whether the defenders were in fault at common law; and (2) whether they were in fault under the Employers' Liability Act. The second and third questions adjusted by the Sheriff quite properly put to the jury the case of fault under the Act. The first question omits all reference to fault at common law, and, as I have already indicated, until it be ascertained by the jury to whose fault the defect was due and that is a pure question of fact-it is, in my view, impossible either to affirm or to deny the common law liability of the defenders. If the question of fault was appropriate and necessary for the consideration of the jury under questions 2 and 3, I can see no reason why it should be inappropriate and unnecessary in question 1. On the contrary, I think it was essential.

It therefore appears to me that all the propositions which I premised are proved, and if that be so, then for aught yet seen this verdict cannot, in my judgment, stand. There remains for consideration the ques

tion whether the pursuers are barred from the remedy of reduction (a) because they omitted to object to the form of the question when it was propounded by the Sheriff in the course of the trial, or (b) because they consented to dispense with a record of the evidence.

As regards (a) it must be remembered that both parties on the invitation of the Sheriff had proposed questions for the trial of the issue, and that the Sheriff, rejecting the proposals both of the pursuers and of the defenders, himself adjusted the questions which he conceived to be appropriate. In effect, after hearing parties, he gave judgment in the matter. In these circumstances I am not disposed to blame the pursuers' agent for the attitude which he adopted. He may well have thought that it would not have been seemly to protest against the considered opinion of the Sheriff. In any event, had the pursuers' agent protested, his protest might not have been recorded, and an exception was not open to him because the evidence was not taken down in shorthand. event I am not prepared to hold that the failure of the pursuers to resort to the futilities of protest or exception instructs an agreement on their part to waive the objection which they now take. As regards (b) the pursuers have already been penalised for their supineness, if it be supineness, in dispensing with a record of the evidence. Their appeal to this Court has been dismissed as incompetent. But that is quite another matter from holding that by the omission of the pursuers to require the evidence to be recorded they have forfeited all other rights open to them-e.g., suspension or reduction-by the exercise of which they may get rid of an obnoxious verdict. I know of no authority for that proposition, which seems to me to be without warrant.

In any

I will add one further observation only. It appears to me that the passing of the Sheriff Court Act 1913 has greatly intensified the responsibilities and increased the difficulties of the judge who tries a Sheriff Court action such as this. Prior to that Act the Sheriff adjusted the questions for the jury beforehand at his leisure, and either party if aggrieved had with his consent a right of appeal. Now the Sheriff is enjoined to adjust the questions, not prior to but in the course of, it may be, a complicated case, and that without any right of review, unless in the, I take it, exceptional case where the evidence is recorded in shorthand. I am bound to say that I sympathise with the position in which the presiding judge is thus placed. It is obviously difficult for him, under the circumstances which I have figured, to steer an unexceptionable course. It is obviously easy at one's leisure and after the event to criticise and correct what he has done. But I think it is by no means inappropriate that in an exceptional case such as this reduction should be resorted to as being the equivalent of the right of appeal, of which both parties are now deprived.

In the view which I take it is unnecessary for me to offer a concluded opinion regard

ing the other grounds of reduction on which the pursuers rely. I will only say that as at present advised I should find great difficulty in giving effect to them separately or cumulatively.

But as I think that the verdict is vitiated by the considerations to which I have adverted, my opinion, in which I differ with profound respect and regret from the consulted Judges and from your Lordships, while it cannot affect the result, is that the judgment of the Lord Ordinary should be recalled, decree of reduction granted, and a new trial ordered.

LORD SKERRINGTON-This is a painful case because it seems possible that a miscarriage of justice has taken place. At first I was disposed to attribute the miscarriage, if miscarriage there was, to the form of the questions to the jury as framed by the learned Sheriff. On further consideration, however, I am inclined to think that the Sheriff was placed in a position of difficulty owing to the fact that the pursuers' pleadings in the Sheriff Court action were not well adapted to meet their case as it came out on the evidence. It now appears as if the pursuers probably had the defenders on the horns of a dilemma, though in the absence of any record of the evidence it is impossible to express a definite opinion. The pit in question, though not proved to have been in bad order or of bad construction as averred by the pursuers, was apparently one which being uncovered and situated in the open air was likely to become unsuitable for the reception of molten metal, and dangerous if occasionally used for that purpose unless special precautions were taken which would eliminate the damp which would naturally accumulate beneath the pit. The simplest and most effective precaution would be to keep the pit in regular use and thus dry up any small amount of dampness which might accumulate beneath it from day to day. Accordingly it was, I should suppose, the defenders' duty to establish some system in order to secure that the pit should not be occasionally used for the reception of molten metal unless precautions were taken before it was so used to make it as safe as it would have been if it had been in regular use. The defenders were therefore presumably guilty of negligence at common law in failing to establish such a system and to appoint a competent person to carry it into effect. Alternatively, if they did establish such a system and appoint a competent person for that purpose such person was presumably guilty of negligence in the discharge of the duty entrusted to him by the defenders, viz., the duty of seeing that the pit in question was in a safe condition for the reception of molten metal. The pursuers' pleadings in the Sheriff Court action contain the germ of some such case but only in a very rudimentary and obscure form. Nothing is there said about the defenders' failure to establish a proper system in their works, nor do the pursuers found upon the appropriate clauses of the Employers' Liability Act 1880, section 1 (1) and section 2

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1). When it came, however, to suggesting questions for the Sheriff to put to the jury the pursuers' agent suggested that the jury should be asked whether the defenders had been negligent in permitting the injured workman to work at the pit in question. I am not surprised that the Sheriff refused to put a question for which the pleadings did not supply an adequate foundation. The mistake of the pursuers' procurator was a very venial and natural one when it is remembered that counsel (who ought to know better) constantly propose issues for which no proper foundation has been laid in the pleadings.

As regards the first question framed by the Sheriff, to which alone the pursuers' counsel confined his criticisms, I think that it fairly put to the jury the only defect in the pit clearly and properly averred on the record, viz., defective construction or condition owing to a broken pipe, bad drainage, etc., asdistinguished from unsuitability, which latter might be a merely casual defect not necessarily implying common law liability on the part of the employer but only negligence on the part of a fellow workman. No doubt the first question if considered by itself and merely in the light of the pleadings and without any further explanations may be regarded as suggesting an incomplete and even a misleading view of the case which the pursuers intended to present of common law liability on the part of the defenders, but it must be assumed that the Sheriff gave to the jury all necessary explanations in regard to the law applicable to the facts of the case and bearing on the question as framed by him. That assumption is always made in the Court of Session in considering the effect or validity of a verdict when no exceptions have been taken to the law as laid down by the presiding judge at the trial. If the same assumption is made (as I think that it ought to be made) in the present case the criticisms which have been made upon the form of the first question lose their force. If the pursuers' agent thought that the question as framed was misleading he had only to ask the Sheriff to give such a direction to the jury as he thought necessary in order to obviate any danger from this source. If the Sheriff refused to give such a direction I see no reason to doubt that the pursuers could have excepted and appealed upon the ground of misdirection in terms of section 31 of the Act of 1907 and rule 148-assuming of course that the pursuers had complied with the statutory condition of having a record of the proceedings taken by an official shorthand writer of the Court. It is easy to figure a case tried either in the Sheriff Court or in the Court of Session where an objection to a verdict, or a question how it should be applied, could be satisfactorily disposed of without any reference to the notes of evidence at the trial, but it was I think assumed in the Sheriff Court (Scotland) Acts 1907 and 1913 (sections 31-33 and rules 133-150), just as it was assumed in the Court of Session (Scotland) Act 1868 (sections 34-50) and earlier legislation, as a condition-precedent to the

right to raise any such objection or question that there should be an authentic record of the proceedings at the trial, and that this record would be made available if the Court of Appeal or the court applying the verdict or one or other of the parties should desire to refer to it. Accordingly I am of opinion that if there was a miscarriage of justice (as to which I am doubtful) the pursuers have dispensed with any right to insist upon its being remedied. I therefore think that the Lord Ordinary properly disposed of the action in so far as regards the question with which the consulted Judges are alone concerned.

LORD CULLEN-The argument which we have heard related to the first of the questions proponed by the learned Sheriff to the jury at the trial. The pursuers complain of that question as being defective in respect that it did not, as they say, duly and sufficiently formulate the issue of fact under the common law aspect of the case which was being tried, and of the pleas-in-law advanced by them in the present action of reduction, that which their counsel alone tabled in this part of the case was the fourth, which is to the effect that a miscarriage of justice took place-a plea which seems to me somewhat vague as a ground of reduction at common law.

As the parties before the Sheriff agreed to dispense with the proceedings at the trial being recorded we do not have these before us; and as we do not know, apart from the terms of the question complained of, how the topics relevant to liability were handled at the trial by the parties and by the Sheriff in his charge, I confess that I do not find myself sufficiently seised of the case to be in a position satisfactorily to form an opinion as to what may have been, if any, the demerits of the question as a contribution to a solution of the ultimate question of liability. Assuming, however, what I understand to be the gist of the pursuers' case that the question as stated did not duly reflect all the elements of fact which on a correct view of the law entered into the question of liability on the part of the defenders, it remains to consider whether this affords a good ground for reducing the verdict. One thing is clear, that where, as in the present instance, there has by consent been no record of the proceedings at the trial, the statute explicitly withholds the right of appeal which it gives where the evidence has been recorded. The pursuers' counsel, however, maintained that the erroneous nature of the question as alleged was such as to constitute a fundamental nullity or irregularity in the proceedings warranting reduction at common law. I am unable to adopt that view. The Sheriff was of course entirely in accordance with the statute in proponing questions, and as to what the terms of any questions proponed should be that was a matter confided to his judicial discretion. The pursuers' case as it was presented to us does not seem to go further than this, that the Sheriff in stating the question under consideration as he did misapplied the law and did not formu

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was extravagant. I think so still. I do not propose to go into the matter, In his argument on this branch of the case the pursuers' counsel cited a large number of cases decided under the Small Debt Act. To my mind these cases have no bearing upon this question. In my opinion if a person is to get a right of appeal only on complying with certain conditions, then it is essential that he should comply with these conditions in order to maintain his right of action. But it is a totally different thing to say that because of some defect in the recording of the proceedings by an official of the Court either party may have the whole proceedings set aside whether he was right or wrong. The whole matter is fully gone into in the careful and convincing opinion of the Lord Ordinary, and I content myself with expressing my entire concurrence with the result he has reached and the reasoning by which he reached it. In the course of the argument pursuers' counsel laid greater stress upon one point than apparently he put upon it when the case was argued before the Lord Ordinary. That point was whether the questions framed by the learned Sheriff for the jury's consideration were so absolutely defective that the pursuers' case had never been properly put before the jury. I confess for my own part that I never regarded this matter as of any importance in the present case, because I have never seen how the pursuers could put their argument upon this branch of the case upon any logical footing. But it was a matter upon which we were not at one, and we have taken the opinion of three Judges of the First Division. I express my entire concurrence in the opinion expressed by these Judges.

I confess I am at a loss to understand how, sitting here without any information as to the evidence which was before the Sheriff and the jury, we can possibly say of the questions that were framed and to which the jury were asked to deliver answers that these were not questions which enabled them to determine the whole case that was put before them. It seems to be suggested that because the pursuers averred a case-in my opinion a case of very doubtful relevancy-at common law and under the Employers' Liability Act, they were therefore entitled to have answers given by the jury as to whether there was fault under the one category or the other. To that view I entirely dissent. They had no such right. The fact that the defenders did not insist upon their plea of irrelevancy merely meant this, that the case would go to proof upon the averments, and that upon the facts as brought out at the trial, the judge and the jury, each doing his part of the work-and after all it is a composite piece of work-the proper result in law would be arrived at. In this particular case, after hearing the evidence, the Sheriff put to the jury as the first question, whether there was defect in connection with the outside pit that was used on this particular occasion, and if there was defect, in what particular? The jury, under that

question, were entitled to find, first that the pit was defective, and then to state particulars. On that there remained the dutywhich was that of the judge and not of the jury-to say whether the case at common law had been made out or not.

Now the answer given by the jury was, I think, rightly interpreted by the Sheriff as negative of the common law liability. In effect it was that the pit was unsuitable on this particular occasion because of dampness. That did not in any way indicate that there was common law responsibility upon the defenders. On the other hand, if the jury had found-which apparently they could not find, because, I presume, of an entire absence of evidence upon the matter -that the pit was structurally defective, there would or might have been a case against the defenders at common law.

In connection with this matter the Sheriff acted within his statutory power in putting special questions. If a Sheriff proceeds to put special questions to the jury I think he is quite right to put questions which deal solely with fact, and that it is objectionable that he should put questions of mixed fact and law. There is a clear distinction between the question whether a person other than the defenders has been guilty of negligence and the question whether the defenders have been guilty of negligence, because that second question is certainly one of mixed fact and law. The other question whether the particular employee of the defenders had been guilty of negligence was a matter upon which specific evidence was probably led.

Your Lordship in the chair has expressed the view that there had been a miscarriage of justice here. I confess I do not see it. Solfar as I can judge of the case, I think there might have been a miscarriage of justice if the Sheriff had thought fit to enter the verdict up for the pursuers. There is nothing, even now, stated by the pursuers which to my mind indicates that they had a common law case. One would have thought that since they desire to have the verdict for the defenders set aside and a new trial granted, they would have acquainted us with the facts which went to show that there was a common law liability -I mean a common law liability against the employers as that was laid down in Reid v. Bartonshill Coal Company (1858, 3 Macq. 268) and Wilson v. Merry & Cuning. hame (1867, 6 Macph. (H,L.) 85), and after wards, it may be, extended by the House of Lords in the case of Smith v. Baker, [1891] A.C. 325. I find nothing to indicate that there was such a case,

It may be that the jury intended to give a verdict for the pursuers. But if the jury did intend to give a verdict for the pursuers and there was no legal evidence to support that verdict, that verdict would be a miscarriage of justice. Accordingly I think if the pursuers had got the verdict they would have got it upon grounds insufficient within the law to support it. It is not outside the experience of judges who preside at jury trials that with the directions which most experienced judges give