Scottish Court of Session Decisions

In this case, in which an issue was adjusted to try the question whether the complainers have had forty years' possession of the mussel scalps in the river Eden, the respondents moved the Lord Ordinary ( Barcaple) to fix a day for the trial of the cause during session, alleging as a reason for doing so that some of the respondents would be engaged at the herring fishing when the case would probably come on at the ordinary jury sittings. The complainers, on the other hand, moved that a special jury should be appointed to try the question, on account of the difficulty and delicacy, and the novelty of the question. The respondents objected that the question was an ordinary one of fact. There was nothing misleading, as contended for the complainers, in the words “exclusive possession,” which could not be put right by the presiding judge. No case had been cited when the Court had granted a special jury at the first trial of the case; all the cases were those where a common jury had made a miscarriage and a second trial was allowed by the Court. His Lordship reported the point to the Second Division.

The Court held that the respondents had assigned a good reason for the trial of the case before the Lord Ordinary during the session, and thought the case was one for a special jury in respect of the anxiety with which the issue had been adjusted by the Court, and of the fact that it was the first case of the kind.