Scottish Court of Session Decisions

This case was tried in March last before Lord Ormidale and a common jury, when a verdict was returned for the pursuers. In July last this verdict was set aside as contrary to evidence, and a new trial granted. The second trial is to take place at the Spring sittings.

Johnstone, for the defender, now moved that the second trial should take place before a special jury. In support of his motion he referred to Magistrates of Elgin v. Robertson and Others, 12th March 1862, 24 D. 788, where the Lord Justice-Clerk said “that a question as to a right of road case is one which should be tried before a special jury, for in these cases it is sought to impose a burden upon heritable property;” and also to Bell v. Reid and Others, 24 D. 1428, a right of way case which was twice tried, and on the second occasion before a special jury.

Millar and Mackintosh, for the pursuers, objected, and cited Urquhart v. Bonnar (vol. ii. p. 178); but in answer to a question from the Lord President stated that they knew of no right of way case in which a motion for a special jury for a second trial was refused.

The Court granted the motion. The case was one of great nicety, and in trying it a common jury had already failed. The pursuers could suffer no hardship by the motion being granted, and the cases cited by the defender were precedents, while none were referred to on the other side.