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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gardner v. Keddie or M'Gaghan (Ante p. 6.) [1866] ScotLR 2_95 (20 June 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0095.html
Cite as: [1866] ScotLR 2_95, [1866] SLR 2_95
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SCOTTISH_SLR_Court_of_Session
Page: 95↓
Court of Session Inner House Second Division.
v.
(Ante p. 6.)
Facts:
Held that a cause in which a trial had taken place before the Lord Ordinary and a jury, and in which the Court had afterwards upset the verdict as contrary to evidence, and granted a new trial, was in dependence before the Lord Ordinary, and not the Inner House, and therefore that a motion to have a day fixed for the new trial could be competently made only in the Outer House.
This case was tried last session before Lord Jervis-woode and a jury, and resulted in a verdict for the pursuer. Thereafter the defender moved for a new trial, and obtained a rule on the pursuer to show cause why it should not take place. The rule was at the commencement of this session made absolute. The case was then enrolled before the Lord Ordinary to have a day for trial fixed. His Lordship, however, expressed doubts whether he could entertain such a motion, as, in the interlocutor of the Inner House granting a new trial, there was no remit of the case to the Lord Ordinary. A note was accordingly boxed to the Second Division, praying the Court to remit the case that a day for trial might be fixed.
W. A. Brown, in support of the note, argued—Under the Court of Session Act of 1850 the practice of the Court was divided in regard to reports from the Lord Ordinary on cases upon issues. In the one Division a remit was made to the Lord Ordinary after issues were adjusted, and in the other the cause was retained in the Inner House. In consequence of this unequal practice the Distribution of Business Act of 1857 provided, in sec. 8, that a remit should be made. That Act was declaratory of the law. The present case falls under the same principle that determined the provision of the Act of 1857. When a case is before the Inner House on a motion for a new trial it is there for a temporary purpose, just as a case is before the Court for a temporary purpose when issues are adjusted. This is casus improvisus, under the 8th section of the Act of 1857, and therefore the remit should be made.
No appearance for the pursuer.
The Court were unanimously of opinion that the case was in dependence before the Lord Ordinary, and not the Inner House. The Lord Justice-Clerk remarked that although he had no difficulty on the point, he was glad the question had been raised, as it was desirable that it should be authoritatively ruled. In considering a motion for a new trial, nothing was before the Court but what took place at the trial, the Judge's notes and the verdict of the jury, just as in dealing with a Bill of Exceptions, nothing but these and the exceptions were before the Court. The Court could not, in that case, look to the process, and he did not see that in a motion for a new trial the case was different. There was no foundation for the argument that the analogy of the practice of the Court, in reports from the Lord Ordinary upon issues, applied under the Act of 1857, or for the notion that the case was casus improvisus under that Act. The motion for a new trial was made under the Act of William of 1830.
The other Judges concurred.
Solicitors: Agent for Defender— James Bell, S.S.C.